A recent rule change by the Trump administration redefines the meaning of "harm" under the Endangered Species Act (ESA), a move that environmental advocates argue significantly weakens protections for species at risk of extinction. The rule, published earlier this month and set to take effect in September, alters a long-standing interpretation of the law that included habitat destruction as a form of harm.
The Endangered Species Act, passed in 1973 with broad bipartisan support, prohibits the "take" of endangered or threatened species without authorization. The term "take" is defined by ten actions, including "harm." Historically, the government's definition of "harm" encompassed actions that impaired essential behaviors like breeding, which could include destroying a species' habitat. This interpretation was crucial because destroying the habitat of an already imperiled species could push it closer to extinction.
However, the new rule abandons this broader definition. The administration stated its agreement with a narrower interpretation, largely consistent with a dissenting opinion from Justice Antonin Scalia three decades ago, which posits that "harm" only applies to direct and intentional actions against individual animals, such as capturing a sea turtle for consumption or as a pet. This shift means that actions that may indirectly or accidentally lead to a species' extinction, such as logging forests critical to endangered birds or building on nesting grounds for sea turtles without directly crushing eggs or animals, may no longer be considered illegal.
Interior Secretary Doug Burgum stated that the previous approach "turned routine activity into a regulatory trap, drove up costs that impacted people’s lives, and expanded federal authority beyond what Congress intended." He added that the action "restores common sense, respects private property, provides much-needed certainty for landowners and follows the statute Congress actually passed."
Environmental advocates and legal experts contend that this change undermines the core purpose of the ESA, which includes conserving the ecosystems upon which endangered species depend. J.B. Ruhl, a lawyer and expert on the ESA at Vanderbilt University, described the administration's interpretation as something that could "blow up the Endangered Species Act."
The rule's impact on existing conservation plans is also a concern. Habitat Conservation Plans, designed to mitigate the incidental impacts of development on endangered species, are based on the previous definition of harm. Daniel Rohlf, a law professor at Lewis & Clark Law School, noted that by removing the broader definition, the administration has effectively stated that incidental harm is no longer illegal, potentially jeopardizing these plans and past conservation efforts.
Despite the rule change, some protections for endangered species remain. The designation of "critical habitat"—areas essential for a species' survival—still requires federal agencies to ensure their actions do not destroy these areas or jeopardize species. Furthermore, the new rule faces legal challenges. Several environmental groups have filed lawsuits arguing that the rescission of the broader definition of harm violates the ESA's language and intent. These challenges may ultimately reach the Supreme Court.
The legal landscape for interpreting the ESA has shifted following the Supreme Court's overturning of the Chevron doctrine, which previously allowed courts to defer to federal agencies' interpretations of ambiguous laws. Now, the power to interpret such language rests more directly with the courts. Advocates also point to a 1995 Supreme Court case, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, which affirmed that an "ordinary understanding" of harm includes habitat modification that injures endangered species. However, because that decision relied partly on the now-overturned Chevron doctrine, the meaning of "harm" may be relitigated.
Legal scholars argue that a plain reading of the word "harm" logically includes destroying vital habitat, and that Congress intended such a broad interpretation, citing the ESA's provisions for "incidental take" permits, which can include habitat damage. For the administration's narrower interpretation to fully prevail, they suggest, the word "harm" itself would need to be removed from the ESA. Jane Davenport, a senior attorney at Defenders of Wildlife, stated that if the decision stands, it "eviscerates the statute on which imperiled species conservation has rested in this country since 1973."