Endangered Species Act and the meaning of "harm"

The Endangered Species Act notably marked its 50th year, December 28, 2023; and I wrote about it here.1 It is known as one of the most effective environmental statutes in protecting the environment and can halt development projects, if they trigger the prohibitions of the Endangered Species Act.

There are two major parts of the Endangered Species Act — Section 4 describes how to list a species as endangered or threatened, the two statutory statuses for a species. Section 7 requires consultation by any federal agency if they anticipate projects affecting endangered or threatened species; and Section 9 prohibits any one within the jurisdiction of the U.S. from trading in endangered or threatened species or parts, or to “take” an endangered or threatened species. “Take" is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.2 At least until September 14, 2026, when the federal government wants to make final the removal of this definition of “take” from the regulation which further explains the statutory definition.3 Since 1975, the defintion of “take” has included any significant environmental modification or degradation which has such effects. . . included within the meaning of `harm'.4

The U.S. Supreme Court agreed in 1995, that this definition of “harm” was a reasonable one on the part of the U.S. EPA, and so upheld the regulatory definition. In the recent proposal to change the rule published July 14, 2026, the Department of Interior explained as part of their reasoning in rescinding the definition of “harm” was because it was “outdated” and they like Scalia’s dissent in the 1995 opinion, better than the majority opinion. Because we cannot cherry pick the dissent we like better to recognize as the law of the land, surely they did not mean this. Upon a further read of the logic they apply to this, in essence is that because this case (1995 case) was decided using the methods of a case that was overruled (Chevron), it must mean that this case must be overruled, too. (Despite the U.S. Supreme Court opinion specifically writing that the overruling of Chevron does not mean cases decided applying Chevron methods were now overruled, that is the logic that was used.)

It is the definition of “harm” that means to also destroy the habitat of an endangered or threatened species. The proposed withdrawal of the “harm” definition will no longer prevent development projects that destroy the habitat needed for an endangered species or threatened species to exist. For example, the endangered bird in the 1995 case could not live if the only tree it nested in was killed. Common sense tells you that the bird cannot nest, it cannot produce another generation and it becomes extinct. The common sense administration just lost its common sense, here.

Oddly, they seem to have conflated the regulatory definition (an Executive Branch function) with the statutory definition (a Legislative Branch function). “Harm” is one of the words in the statutory definition of “take” which is still law. The 1995 opinion speaks to the interpretation of the word “harm” in the statute, which of course, cannot be rescinded by the Executive Branch.

Several organizations immediately sought judicial stays to prevent the Executive Branch from acting on rescinding the rule. A stay in this case is simply to ask the court to stop the Agency from taking action until the court reviews the legality of its action. While the agency has taken administrative steps consistent with the Administrative Procedure Act, it must also explain why it is basically reversing itself from its previous decision in 1975. Whether saying it is “outdated” or that Scalia’s dissent sounds better to us, is a sufficient basis to reverse the agency’s previous course of action, is something the judiciary would determine, consistent with case law.

The agency would like to use the Scalia dissent from the 1995 case which suggests that “harm” must be intentionally directed to an individual of that species. This does not include its habitat.

A study in 2019 found that 99% of the listed endangered species have been saved from extinction.5 That is not a bad result for a federal environmental program. In 1975 the definition of harm included avoiding the destruction of the endangered or threatened species’ habitat, which is the rulemaking that followed from the year the statute was passed in 1973.

Common sense tells us that Congress was likely thinking that the habitat of an endangered or threatened species was key to its survival when it required consultation before a project destroyed its habitat. The U.S. Supreme Court has not been reluctant to apply common sense in its analysis.6 It is hard to see how that is “outdated”. Re-drafting the rule as a proposed rule could still be done and comply with the Administrative Procedure Act. It would still require a justification for the agency reversal so that would not change the legal process or the 60 days for the rule to be final.

The common sense administration should return to common sense on this rule.

1

Happy 50th, ESA

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December 31, 2023

The Endangered Species Act of 1973 was passed by Congress, Dec. 28, 1973. It became law when it was signed by Pres. Nixon (Republican) that same day.