The Trump administration is proposing a new rule to rescind the regulatory definition of “harm” under the Endangered Species Act (ESA). If finalized, the rule would no longer classify the modification of habitat as a form of taking.
The U.S. Fish and Wildlife Service (USFWS) and the National Oceanic and Atmospheric Administration’s (NOAA) National Marine Fisheries Service (NMFS) said the current definition of harm as it applies to habitat modification runs contrary to the best meaning of the term “take.”
Previous regulations expanded the ESA’s reach in ways that do not reflect the best reading of the statute to prohibit actions that impair protected species’ habitat, the feds said.
“We are undertaking this change to adhere to the single, best meaning of the ESA,” the proposed rule read. The rule intends to align the definition with the plain text of the ESA as guided by historical and legal interpretations of take as an affirmative act directly affecting wildlife.
Background
Under the ESA, the taking of endangered species is prohibited. The term “taking” refers to any action that involves harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing or collecting a protected species. USFWS has defined “harm” as to include “significant habitat modification or degradation.”
In the ’90s, the Supreme Court upheld the USFWS’ regulation for taking under the Chevron deference. The Chevron deference was overruled in the 2024 case Loper Bright Enterprises v. Raimondo, which determined that the question “that matters” is whether the statute authorizes the challenged agency action. “In other words, does the agency’s regulation match the single, best meaning of the statute?” the feds clarified.
The agencies have determined that no, the existing regulations, which still contain the definition of “harm” contested in the ’90s Supreme Court case, do not match the single, best meaning of the statute.
“The ESA itself defines ‘take’ and further elaborating on one subcomponent of that definition—“harm”—is unnecessary in light of the comprehensive statutory definition,” the proposed rule read.
Because the current regulations do not align with the single, best meaning of the statutory text, the USFWS and NMFS propose to rescind the regulatory definition of “harm” and rest on the statutory definition of “take.” The revision would not affect permits that have been granted ahead of the rule becoming final.
Environmental groups shared their opposition to the proposed rule. “Weakening the definition of harm would cut the heart out of the Endangered Species Act and be a death sentence for plants and animals on the brink of extinction,” said Noah Greenwald, codirector of endangered species at the Center for Biological Diversity.
Habitat destruction is the primary cause of extinction, the group said, so the federal definition of harm has been necessary to protect and recover endangered species.
“We are aware that there are parties who are likely to provide comments concerning their reliance interests on environmental and aesthetic grounds, even as we are aware there are property owners and regulated entities who are likely to provide comments regarding interests in not being subject to a regime Congress may never have authorized,” the federal agencies said.
Comments can be submitted by May 19. To submit a commit, visit tinyurl.com/577teehy.
In related news, on April 16, lawmakers announced an investigation into the expansion of the ESA under the Biden administration. House Committee on Oversight and Government Reform Chairman James Comer (R-KY) and Subcommittee on Economic Growth, Energy Policy, and Regulatory Affairs Chairman Eric Burlison (R-MO) requested a briefing on the NMFS’ compliance with President Donald Trump’s national energy emergency declaration, amid an ongoing larger investigation into the Biden administration’s energy policies.
“Environmentalist groups abused the ESA and regulations promulgated under its authority by filing a litany of lawsuits to create regulatory delays on infrastructure projects they oppose and to influence NOAA Fisheries’ decisions,” the lawmakers wrote. “Under the Biden administration, NOAA Fisheries tailored ESA policies to conform with these groups’ demands.” — Anna Miller, WLJ managing editor
