The Department of Justice (DOJ) is defending the Trump administration’s rescission of the regulatory definition of “harm” as it relates to the Endangered Species Act (ESA).
On Oct. 7, the DOJ’s Energy and Natural Resources Division (ENRD) filed motions for summary judgment in four cases defending challenges to the definition rescission. The cases, which were filed in the Northern District of California and the District of South Carolina, are the first in a series of other challenges to reach this stage of litigation.
“Regulatory overreach burdens American families and businesses, and these now-rescinded Endangered Species Act regulations are a prime example,” said Principal Deputy Assistant Attorney General Adam Gustafson of ENRD. “The Department of Justice will continue vigorously defending President Trump’s efforts to uphold the Act as written and protect economic growth.”
In all four cases, at issue is whether the ESA’s restriction on “take” of listed species requires an intentional, purposeful act directed against a particular animal.
Congress defined “take” in the ESA to include 10 verbs focused on intentional actions against animals like “hunt,” “shoot,” “kill” and “trap.” But the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) interpreted the verb “harm” in a way that included environmental modification or degradation.
“A complaint or an indictment alleging that a defendant ‘harmed’ a listed species would state no claim and charge no offense,” the Trump administration wrote in its court filings. “The allegation must be that he took one. ‘Harm’ must therefore be construed as Congress used it—a description of one way in which a person may take a protected animal.”
The Supreme Court’s Chevron doctrine, which was overruled in 2024, deferred to agency interpretations of statutes, which led to the court’s decision to uphold the prior regulatory definitions of “harm” in the ESA, the DOJ said. A dissent to that decision stated that the ESA’s plain language, structure and history cut against an overly broad reading.
“After the Supreme Court’s rejection of Chevron deference in its decision in Loper Bright Enterprises, the FWS and NMFS should interpret the statute according to its plain terms—which adopts the reasoning of that prior dissent—and decide to rescind the regulatory definitions of ‘harm’ to return to the statutory text as written,” the DOJ concluded.
The DOJ requested that the courts rule on the motions in an expedited manner.
Background
In July, the Department of the Interior announced it was rescinding the definition of “harm” that required consideration of the modification and degradation of a species’ habitat. The move went into effect Sept. 14.
The decision prompted multiple lawsuits from environmental groups across the country, which argued that habitat loss is a major factor for extinction, and that rescinding the “harm” definition was in violation of the law. A coalition of 21 attorneys general also filed suit against the rescission, contending that the action is contrary to the intent of the ESA.
In a Sept. 14 memo, USFWS Director Brian Nesvik outlined how staff should interpret the ESA’s prohibition on “take” following the rescission of “harm.” The memo explained that when there is no direct intention to harm an animal, there is no take, regardless of how serious the resulting injury may be.
Agriculture groups have long contended that the “harm” definition added unnecessary regulatory burdens to everyday ranching activities such as grazing management practices and infrastructure repairs. — Anna Miller Fortozo, WLJ managing editor
