Trump Administration Rescinds ESA “Harm” Definition, Prompting Legal Challenges

The change means that destroying or degrading critical habitat will no longer automatically constitute an illegal “take” under the Endangered Species Act (ESA). The rule is scheduled to take effect on September 14.

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For decades, federal agencies interpreted “harm” to cover habitat destruction, a view upheld by the Supreme Court in *Babbitt v. Sweet Home* (1995). That interpretation relied on the Chevron doctrine, which allowed agencies to define ambiguous statutory language. In the summer of 2024 the Supreme Court overturned Chevron, shifting interpretive authority to the courts. The Trump administration seized on this shift, opting to delete the habitat-based definition rather than issue a new one.

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• A 2019 study found 81 % of species listed under the ESA from 1975-2017 were threatened primarily by habitat loss and degradation.

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• More than two-thirds of ESA-listed species rely at least partly on private lands; 10 % exist only on private property.

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• Approximately 358,000 public comments were submitted on the proposed rule, with many describing the change as “extinction fodder.”

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Environmental groups and two Washington tribes filed lawsuits in the U.S. District Court for Western Washington, asserting that the rescission violates the ESA’s statutory language and undermines the law’s core goal of protecting habitat.

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Legal scholars and conservation advocates contend that the rule strips away the ESA’s most effective tool for safeguarding habitat.

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• “It’s so intuitive, and it’s also the law that endangered species need to have habitat, or they can’t survive,” — Ben Levitan, a senior attorney at the nonprofit Earthjustice

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• “This rule will worsen salmon habitat conditions and without question that will reduce salmon stocks,” — Tandy Wilbur, a Swinomish senator and fisheries manager

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• “If you’re taking away the most important tool under the Endangered Species Act to protect most of the habitat that the species need to survive, they won’t,” — Parenteau. Without

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• July 10 – Interior Department press release labels the prior “harm” definition an “unlawful regulatory intrusion.”

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• April – Administration proposes rescinding the “harm” definition.

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• May – Forest Landowners Association submits a comment supporting the change.

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• September 14 (scheduled) – Rule slated to become effective.

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• 2024-2025 – Lawsuits filed by a coalition of nine environmental groups and two tribes seek to block the rule; potential Supreme Court review noted by experts.

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The rule’s impact hinges on future court interpretations of “harm.” While the administration asserts that critical-habitat protections remain intact, critics argue that without the habitat definition, “incidental take” permits lose substantive meaning. No definitive judicial ruling has yet clarified whether the rule will survive legal challenges, leaving uncertainty about the ESA’s protective reach for species dependent on private lands.

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