On June 28, the U.S. Supreme Court ruled that federal courts are no longer required to defer to regulatory agencies when determining federal policy.
The case is Loper Bright Enterprises v. Raimondo, and the ruling says that when regulatory language is ambiguous, courts may now determine how that language should be interpreted without deferring to an agency—such as the Environmental Protection Agency. This is expected to lead to changes in the way that health care, safety and the environment are regulated.
Scott Lake is the Nevada staff attorney for the Center for Biological Diversity, a nonprofit organization that works to secure legal protections for species on the brink of extinction. In Nevada, he said, the agencies that have typically determined environmental policy are the Bureau of Land Management, the U.S. Forest Service and the U.S. Fish and Wildlife Service. Laws governing species protection commonly contain phrases that are subject to interpretation, Lake said, such as “significant portion of its range” or “distinct population segment.”
“I think we’re in a position now where, potentially, courts are going to be basically deciding what those terms mean,” Lake said. In Nevada, this usually means district judges within the state or the United States Court of Appeals for the Ninth Circuit.
“That could be a problem, because the courts aren’t really subject-matter experts,” Lake said. “Some of these things take a mix of legal judgment and scientific judgment.”
That said, for the purposes of the Center for Biological Diversity, the ruling is “kind of a double-edged sword.” As the group vies to get more species protected by law, a court’s deference to a government agency could, in some circumstances, yield less protection, not more.
“My organization has been fighting against Fish and Wildlife Service’s interpretation of those terms for decades, because we don’t think they go far enough,” Lake said. “They can be pretty accommodating to interests that want to harm endangered species.”
Despite the fact that most of Nevada lies in the Mojave and Great Basin deserts, some of the species most watched by conservationists here are fish.
“Nevada is one of the most biodiverse places in the world,” Lake said. “One of the reasons is that we are so exceptionally dry, which means that species that depend on surface water tend to be isolated.”
The critically endangered, inch-long Devils Hole pupfish evolved to have only one natural home, in Ash Meadows National Wildlife Refuge, about 100 miles northwest of Las Vegas. The Oasis Valley speckled dace, a type of minnow, lives only in Oasis Valley, near Beatty.
“A lot of times, whether these species persist or not in the face of development depends on whether they’re listed under the Endangered Species Act,” said Lake.
The Devils Hole pupfish is protected under that act. As for the Oasis Valley speckled dace, the Center for Biological Diversity filed a legal petition with the U.S. Fish and Wildlife Service on July 2 seeking protection for it under the act. The group is especially concerned that several proposed gold mines in the region—and one currently in the permitting process, the North Bullfrog Mine—could put the dace at a higher risk for extinction.
“A question that comes up in listing these species a lot is really: How distinct are they? How unique are they?” Lake said. “And that’s the kind of question that I think Loper Bright would have an impact on. There are dozens of endemic fish species across the state whose listing status is potentially up for debate.”
Lake clarified that the ruling does not mean that courts are prohibited from deferring to regulatory agencies. “So the agency’s interpretation can still definitely still be persuasive,” he said. “If the court wants to defer to the agency, it still can.”
He also said: “Keep in mind that as far as looking at some of the issues we’re facing in Nevada, like lithium mining and groundwater depletion, I’m not sure (the ruling) has a huge impact on that. … In one way or another, we have to solve these problems. And solutions to these are often multifaceted. The litigation in court is really only one little piece of it.”