Comments on Petition of Pacific Legal Foundation, et al., for Rule-Making Under the Administrative Procedure Act (Which Aimed to Promulgate New Regulatory Definitions of “Species” and “Subspecies” Under the Endangered Species Act)

Abstract

Harvard Law School’s Emmett Environmental Law and Policy Clinic submits the following comments on behalf of James Mallet, Paul Ehrlich, Frank Gill, John McCormack, and Peter Raven in response to the Petition of Pacific Legal Foundation, et al. (“PLF”), for Rule- Making under the Administrative Procedure Act (the “Petition”), which was submitted on November 10, 2017 to the United States Department of Interior, the United States Department of Commerce, the United States Fish and Wildlife Service, and the National Marine Fisheries Service (collectively, “the Services”). The Petition asks the Services to promulgate regulatory definitions of “species” and “subspecies” under the Endangered Species Act (“ESA” or “the Act”).

We urge the Services to deny the Petition, because PLF’s proposal contains several flaws:

(1) The Services should not give “species” a single regulatory definition under the ESA because there is no universally accepted species concept among taxonomists.

(2) PLF’s proposed definitions of “species” and “subspecies” are flawed because they are based on erroneously cited authority and they create tension with the statutory definitions in the ESA.

(3) Adopting a single regulatory definition of “species” and “subspecies” is impermissible under the ESA because the Services would not be using the best available science (“BAS”), as required by the Act.

(4) It is appropriate for the Services to continue to make case-by-case species determinations, using the best available science in each case.