Trump Administration Redefines “Harm” Under the Endangered Species Act, Raising Extinction Concerns

In a rule published in early 2024 and slated to take effect in September, the U.S. Interior Department eliminated the longstanding definition of “harm” that included habitat destruction. Under the new interpretation, “harm” applies only to actions that directly and intentionally injure individual animals. Consequently, activities such as building luxury villas on sea-turtle nesting beaches, logging old-growth forests, or installing wind turbines that kill bats would no longer be automatically classified as illegal “take” unless the actor knowingly kills the animals.

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The Endangered Species Act (ESA) of 1973, signed by President Richard Nixon with bipartisan support, makes it unlawful to “take” listed species. “Take” has been defined to include “harm,” which courts have interpreted to cover habitat modification that endangers a species. The Fish and Wildlife Service’s 1995 interpretation survived the Supreme Court’s decision in *Babbitt v. Sweet Home* and guided ESA enforcement for decades. In the summer of 2024, the Supreme Court overturned the Chevron doctrine, shifting interpretive authority from agencies to the courts—a shift the administration leveraged to discard the habitat-harm definition.

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• Doug Burgum, Secretary of the Interior, championed the rule, arguing the ESA had become a “regulatory trap.”

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• J.B. Ruhl, Vanderbilt University lawyer and ESA expert, warned the change “really completely blows up the Endangered Species Act.”

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• Daniel Rohlf, Lewis & Clark Law School professor, noted the rule undermines decades of Habitat Conservation Plans.

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• Noah Greenwald, Center for Biological Diversity, and Holly Doremus, UC Berkeley law professor, represent leading environmental criticism.

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• Industry groups such as the Rocky Mountain Elk Foundation and the Property and Environment Research Center have supported the revisions.

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• No species have been added to the endangered or threatened lists during President Trump’s second term, compared with more than 20 in his first term and about 60 under President Biden.

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• Approximately 30 species are currently proposed for threatened status, including monarch butterflies, alligator snapping turtles, and California spotted owls.

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• Interior officials cite that 97 % of species granted ESA protections remain protected.

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By removing habitat destruction from the definition of “harm,” the rule could weaken the ESA’s ability to prevent extinction. Critics argue that many of the greatest threats to wildlife—habitat loss from agriculture, logging, and development—would no longer be automatically prohibited, potentially accelerating declines of already imperiled species.

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• Doug Burgum (Secretary of the Interior): “For years, federal agencies abused the ESA to obstruct lawful land use and burden American families and businesses… This action restores common sense, respects private property, provides much-needed certainty for landowners and follows the statute Congress actually passed.”

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• The Interior Department declined comment beyond its press release and Federal Register notice.

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• The administration also required economic-impact analyses for designating “critical habitat,” a move opponents say lets corporations sway protection decisions.

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Environmental groups have filed lawsuits alleging the rule violates the ESA’s language and intent. Noah Greenwald warned that exempting industries “will be exempting the main threat to those species.” Daniel Rohlf described the change as “pulling the rug out from under literally decades of work” on Habitat Conservation Plans. Legal scholars note that the Supreme Court’s prior acceptance of a broad “harm” definition may lead to renewed litigation.

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• While the rule eliminates the habitat-harm definition, the ESA still protects “critical habitat” designated by federal agencies; the extent to which this remaining protection will be enforced is unclear.

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• The Supreme Court’s recent decision limits agency interpretation but does not yet clarify how future courts will apply the narrowed “harm” definition.

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• “For years, federal agencies abused the ESA to obstruct lawful land use and burden American families and businesses,” — Doug Burgum, Secretary of the Interior

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• “That approach turned routine activity into a regulatory trap, drove up costs that impacted people’s lives, and expanded federal authority beyond what Congress intended. This action restores common sense, respects private property, provides much-needed certainty for landowners and follows the statute Congress actually passed.” — Doug Burgum, Secretary of the Interior

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• “If you're exempting certain industries that cause habitat destruction, in many instances you'll be exempting the main threat to those species,” — Noah Greenwald, Center for Biological Diversity

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• “Burgum noted Friday that 97% of the species that have been given protections still have them.” — Doug Burgum, Secretary of the Interior

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• “really completely blows up the Endangered Species Act,” — J.B. Ruhl, lawyer, Vanderbilt University

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• “Short of that, she said, Trump officials “want to make ‘harm’ as ineffective a statutory term as possible.” — Holly Doremus, law professor, University of California, Berkeley

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Legal challenges to the rule are expected to proceed through the federal courts, with analysts predicting a possible Supreme Court review given the recent overturning of Chevron deference. The outcome will determine whether habitat destruction remains a prosecutable form of “harm” under the ESA.

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