Environmental and tribal groups have filed lawsuits challenging the Trump administration’s new rule eliminating the Endangered Species Act’s regulatory definition of “harm,” arguing that the change conflicts with decades of agency practice and the Supreme Court’s 1995 decision in Babbitt v. Sweet Home. The administration, meanwhile, has relied on a different interpretation of that precedent in an effort to narrow how federal agencies evaluate habitat impacts when reviewing projects and permits.
Relying on a dissenting view from the high court for a new rule is “certainly unusual,” Bracewell’s Seth Barsky told S&P Global. Barsky noted that the majority opinion in Sweet Home upheld the regulation at issue and added that the plaintiffs “probably have a good chance” of receiving favorable rulings because district court judges generally do not feel comfortable departing from Supreme Court precedent.
