The Trump administration has finalized a regulatory change that removes a long-standing federal definition of “harm” under the Endangered Species Act, a move conservation groups say could weaken one of the nation’s most effective wildlife protection laws by making it harder to stop habitat destruction before endangered animals are driven toward extinction.
The rule, issued by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, eliminates language that for decades treated significant habitat destruction as a prohibited form of harm when it killed or injured protected species. The agencies argue the previous interpretation exceeded what Congress authorized, while environmental organizations contend the change ignores decades of legal precedent and threatens protections for hundreds of vulnerable species. (Vox)
Passed in 1973 with overwhelming bipartisan support, the Endangered Species Act prohibits the unauthorized “take” of threatened and endangered wildlife. The law defines “take” to include actions such as hunting, trapping, capturing, wounding and killing protected animals. Federal regulators have interpreted the word “harm” since the 1970s to include significant habitat modification when that destruction results in injury or death to wildlife.
That interpretation became a cornerstone of federal conservation policy because habitat loss remains the leading cause of species decline in the United States. Rather than waiting until protected animals are directly killed, federal agencies have been able to require changes to development projects, logging operations, mining proposals and other activities that would eliminate the ecosystems species depend on to survive. (Vox)
The Supreme Court upheld that broader interpretation in its 1995 decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. In that case, the Court concluded that habitat modification causing injury or death to protected wildlife could constitute unlawful harm under the Endangered Species Act.
The Trump administration argues that the regulation improperly expanded the law beyond Congress’s intent. Interior Secretary Doug Burgum said the change restores a more straightforward reading of the statute and better respects private property rights.
Environmental attorneys disagree, warning that the rule removes one of the law’s most important enforcement tools without Congress ever amending the statute itself.
The timing of the rule is also significant. Last year’s Supreme Court decision overturning the Chevron doctrine reduced the deference courts traditionally gave to federal agencies when interpreting ambiguous laws. That decision has encouraged agencies across the federal government to revisit longstanding regulations and has opened the door for courts to reconsider interpretations that had remained settled for decades.
Legal scholars say the new habitat rule is likely to become one of the earliest major tests of how environmental law evolves in the post-Chevron era.
The practical consequences could extend well beyond endangered animals themselves. Habitat protections often preserve wetlands that reduce flooding, forests that store carbon, rivers supporting commercial fisheries and ecosystems that sustain outdoor recreation economies. If courts ultimately uphold the administration’s interpretation, developers and extractive industries could face fewer legal obstacles when proposing projects affecting habitat occupied by federally protected species.
The change also creates uncertainty surrounding Habitat Conservation Plans, agreements that allow development to proceed while requiring measures to reduce impacts on wildlife. Those agreements were built around the understanding that habitat destruction could constitute unlawful harm. Without that regulatory definition, conservation groups say decades of negotiated protections may become more vulnerable to legal challenge.
Several environmental organizations have already filed lawsuits seeking to block the rule before it takes effect in September. They argue the administration failed to justify abandoning nearly fifty years of regulatory practice and ignored scientific evidence demonstrating that habitat destruction remains the primary driver of species extinction.
Federal courts will now decide whether the administration’s narrower interpretation is consistent with both the language and purpose of the Endangered Species Act. The outcome could determine how aggressively the federal government protects wildlife habitat for years to come.
As Lewis & Clark Law School professor Daniel Rohlf told Vox, the administration’s decision “pulls the rug out from under literally decades of work.”
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