August 18, 2015

Four legs good, two legs bad

By Ethan W. Blevins Attorney

The tyrant porkers of Orwell’s Animal Farm expanded their power by manipulating language. Whenever the farm’s seven commandments stood in the way of the ruling class of pigs, they’d reinterpret the rules in subtle ways. For example, when the pigs began to sleep in beds, they changed the rule that “no animal shall sleep in a bed” to “no animal shall sleep in a bed with sheets.” Every time the pigs changed the farm’s laws,  the animals deferred to them, assuming the pigs knew best. In the end, the porkers achieved absolute power through gradual expansion of their authority.

Interpretations of statutory language by federal agencies often resemble Orwell’s allegory. Like the pigs, federal agencies interpret the statutes that grant or limit their authority in ways that allow them to boost their power. And, like the meek farm animals, courts regularly defer to those interpretations.

PLF recently filed a motion for summary judgment in a case involving just such an issue–the federal agency interpretation of the word “species.” The definition of that word can affect a lot of people. Under the Endangered Species Act, the federal government can list a “species” as threatened or endangered. When that happens, everyone living within that species’ habitat may face heavy regulatory burdens. If the feds can define a small population of an organism as a “species,” it becomes much easier to craft listings that inflate federal power. Thus, the meaning of “species” has real consequences for many Americans.

Our case involves a proposed listing for the North American wolverine, a wolverine subspecies. Wolverines abound in Canada and Alaska, so protection would only extend to the wolverine subspecies in the lower 48, a fraction of the overall population.

We argue that the federal government cannot list a segment of the North American wolverine’s population because the proposed listing is not a “species.” A “species” is a “category of biological classification ranking immediately below the genus or subgenus.” We don’t call a fragment of a subspecies a “species.” That would be like calling the starting lineup for the Lakers the “NBA.” Agencies can’t use wordplay to slip around constraints on their power.

Admittedly, Congress already fiddled with the word “species” by including subspecies and “distinct population segments of any species” in its definition. Congress can fool around with definitions in this way because it’s the lawmaker. But the lawmaker’s definition of “species” does not include distinct population segments of subspecies. The federal government claims it can list a population segment of a subspecies, thus contorting the definition. Federal agencies cannot sidestep Congress by reinterpreting this word to fit their agenda.

George Orwell’s farm animals had a maxim: “four legs good, two legs bad.” This phrase too often characterizes our government’s approach to environmental protection. The environment shouldn’t always prevail over the interests and rights of people. We see this philosophy in federal agencies’ regular attempts to extend their power by reinterpreting statutory language. Unlike the submissive animals of Animal Farm, however, PLF won’t let federal agencies amass power by modifying the language established by Congress. We hope the courts won’t let that happen either.

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