Background.
The Endangered Species Act (ESA) was signed into law by President Richard Nixon on December 28, 1973. It passed the Senate on July 24, 1973, with a vote of 92-0. The House approved the bill on September 18, 1973, with a vote of 390-12. The website of the EPA as of April 17, 2025 summarizes the law as follows: “The Endangered Species Act (ESA) provides a program for the conservation of threatened and endangered plants and animals and the habitats in which they are found. The law requires federal agencies, in consultation with the U.S. Fish and Wildlife Service and/or the NOAA Fisheries Service, to ensure that actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of designated critical habitat of such species. The law also prohibits any action that causes a ‘taking’ of any listed species of endangered fish or wildlife. Likewise, import, export, interstate, and foreign commerce of listed species are all generally prohibited.” The text of the statute states that “The term "take" means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
In the 1995 Supreme Court decision of Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, timber industry interests challenged an Interior Department regulation defining “harm” to include "significant habitat modification or degradation [that] actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." In a 6-3 decision authored by Justice John Paul Stevens, the court upheld the definition: "Given Congress' clear expression of the ESA's broad purpose to protect endangered and threatened wildlife, the Secretary's definition of harm' is reasonable. First, an ordinary understanding of the word ‘harm’ supports it. The dictionary definition of the verb form of ‘harm’ is ‘to cause hurt or damage to: injure.’ …In the context of the ESA, that definition naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species. Respondents argued that the Secretary should have limited the purview of ‘harm’ to direct applications of force against protected species, but the dictionary definition does not include the word ‘directly’ or suggest in any way that only direct or willful action that leads to injury constitutes ‘harm.’ …. Second, the broad purpose of the ESA supports the Secretary's decision to extend protection against activities that cause the precise harms Congress enacted the statute to avoid. In TVA v. Hill, 437 U. S. 153 (1978), we described the Act as 'the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.' …As stated in § 2 of the Act, among its central purposes is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved .... " (515 U.S. at 697-698).
What is Happening.
On April 17 of this year, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS), the federal agencies charged with implementation of the Endangered Species Act, gave notice in the Federal Register of their intention to rescind their longstanding definition of the statutory term “harm.” Under the Trump administration, FWS and NMFS now propose to rescind their regulatory definition of “harm” because, they assert, it is contrary to the “single, best meaning” of the statute. Although no replacement definition of the term “harm” is proposed, they quote extensively from Justice Scalia’s 1995 dissent in Sweet Home, which argued that the term “take” has long been understood in wildlife law to mean only the intentional hunting or capture of animals. The majority of the Court rejected Justice Scalia’s contention, pointing out that Congress intentionally included the broad term “harm” in the statutory definition of “take,” and that the action proposed by the dissent would make that term effectively meaningless and be inconsistent with the purpose of the ESA.
The obvious intent of the Trump administration’s proposal to rescind the Services’ longstanding definition of “harm” is to facilitate development. As the Supreme Court noted in rejecting the timber industry’s position in Sweet Home, interpreting the Act as only reaching direct and intentional conduct to capture or kill an endangered species would allow a developer to drain a pond in which an endangered turtle lives, knowing that the act would extinguish an endangered species of turtles, “unless the developer was motivated by a desire ‘to get at a turtle.’”
FWS and NMFS are only accepting public comment on their proposed rescission of the regulatory definition of “harm” for 30 days, until May 19, 2025. Protecting imperiled species against destruction and fragmentation of their habitat is essential to conserve biological diversity. Professor E. O. Wilson once said, “I will argue that every scrap of biological diversity is priceless, to be learned and cherished, and never to be surrendered without a struggle.”
More information on the attack on the ESA is available here:
What we must do now: We urge classmates and colleagues to oppose the Trump administration’s abandonment of protection of species’ habitat by: 1) submitting comments on the Federal Register by the May 19, 2025 deadline;
2) encouraging others (including local land trusts and state environmental organizations) to submit comments and speak out on this attack on the core of the Endangered Species Act;
3) contacting your members of Congress to express opposition to this proposal.
