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Is this Supreme Court tougher than the strongest environmental law ever passed?


A greater sage grouse male displays its puffed up breast during mating ritual

The recent Supreme Court decision that knocked down the so-called Chevron Doctrine may force Congress to step up and make more specific laws. But I’m doubtful it will weaken the most powerful environmental law ever passed, the Endangered Species Act of 1973.


The Supreme Court ruled in June in two cases — Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce — to strike down a federal rule that requires the New Jersey herring industry to pay the costs of observers on its fishing boats.


The National Marine Fisheries Service ruling, the court said was overly burdensome and not a reasonable interpretation of federal law. Lower courts had previously upheld the rule, finding it to be a reasonable interpretation of federal law.


The decision overturns a longtime legal ruling called the Chevron Doctrine. The doctrine established in 1984, says that courts should defer to an agency’s interpretation of a law, as long as that interpretation is reasonable.


Most commentators are expecting this to reduce the effectiveness of environmental regulations. They may be right. But I’m not convinced this decision will have the same effect on the federal Endangered Species Act. That’s because the law was written so it will be hard to say its meaning is vague.


In other laws, federal agencies are required to provide protection “where practicable.” But supporters of the act argued that those two words had prevented the Endangered Species Act of 1966 from stopping the decline of eagles, whales and whooping cranes.


“Where practicable” was replaced in the final version of the 1973 law with the requirement that all federal agencies shall take “such action necessary to ensure that the actions authorized, funded or carried out by them do not jeopardize the continued existence of an endangered species.”


The language made protecting endangered species the highest legal priority of government. It handed the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, ultimate veto power over all other federal agencies as well as over other activities funded or regulated by the federal government.


In writing my book, Saving All the Parts, Reconciling Economics and The Endangered Species Act, I spoke with several congressmen and senators who said they didn’t know how powerful the law was when they voted for it. But the law is clear anyway.


The agencies’ interpretation of the law has often been declared wrong by judges because they wanted to weaken it. The challenge, I’ve written, is the law has been used too often by environmental groups because it is so strong, seeking to protect other values.


But it's still the toughest law we've got to protect nature.

 

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