Feds Erase “Harm” From the Endangered Species Act, Opening Habitats to Bulldozers

The Departments of the Interior and Commerce on Thursday finalized a rule rescinding the longstanding regulatory definition of “harm” under the Endangered Species Act. Since 1981, “harm” had been defined to include actions that degrade or modify a threatened species’ habitat, not just direct killing; under the new rule the term is left undefined, meaning destroying a species’ nest or habitat would no longer automatically be treated as illegal “take” under the 50-year-old law [1, 2].

The departments said the change relies in part on the Supreme Court’s 2024 decision in Loper Bright v. Raimondo, which requires agencies to apply the single best reading of a statute, and concluded the prior “harm” definition was an unlawful regulatory intrusion on property rights. Officials said the rule will reduce permitting and compliance costs for energy producers, farmers, and fishing interests. Environmental groups condemned the move and said they intend to challenge it in court immediately [1, 3].

Why It Sucks:

Energy Producers and Farmers

• Permitting costs finally come down. Industry groups argue the old “harm” definition let habitat modification claims block or delay energy, farming, and fishing projects for years, and removing it restores reasonable use of private property [1].
• The old rule exceeded the statute’s text. Supporters argue that under Loper Bright’s standard for reading statutes narrowly, regulators had been stretching “harm” well beyond what Congress actually wrote into the law in 1973 [2].
• Property owners regain certainty. Landowners who could previously face liability for activity on their own land that merely altered habitat now have a clearer, narrower standard to plan around [1].

Environmental Groups

• Fifty years of habitat protection erased overnight. Conservationists argue that since most species decline through habitat loss rather than direct killing, removing the habitat-modification standard guts the law’s core protective mechanism [3, 2].
• Litigation is already loaded and ready. Environmental groups say they plan to sue immediately, arguing the rescission ignores decades of scientific consensus that habitat destruction is itself a form of harm to imperiled species [3].
• It’s a rollback dressed up as legal correction. Critics argue the Loper Bright justification is a pretext, since the 1981 definition was itself upheld by courts for decades before this administration decided to revisit it [1, 2].

Rural and Fishing Communities Dependent on Wildlife

• Local economies tied to healthy ecosystems take the risk. Communities that depend on fishing, hunting, or tourism tied to intact wildlife habitat could see long-term economic damage if habitat destruction accelerates under looser rules, even as short-term permitting costs drop [1, 3].
• Fishing interests are split, not united. While the rule change is framed as a win for fishing interests broadly, communities dependent on specific protected fish stocks worry habitat degradation upstream or offshore will undercut the very resource their livelihoods depend on [1].
• No replacement standard fills the gap. With “harm” left undefined rather than replaced with a narrower rule, affected communities say they now face genuine uncertainty about what protections, if any, survive for the habitats they rely on [2].

Sources & Citations:

[1] Fox News: Endangered Species Act harm rule rescinded, officials say overreach
[2] CNN: Trump administration opens endangered species’ habitats to development, reversing 50 years of environmental law
[3] E&E News by POLITICO: Trump admin narrows Endangered Species Act protections