Trump Attempts to Gut Endangered Species Act. He is Going to Fail

The Trump Administration has signaled its intent to remove habitat protections under the Endangered Species Act. This requires some wonky legal explanation. Bear with us. 

At the heart of the Endangered Species Act is the prohibition of “taking” protected species. “Take” is defined by the law to mean to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect,” and protected species, or to attempt to engage in any such conduct.” Critical to our discussion is the term “harm.” Congress, however, did not define the individual terms, including harm, leaving that work to the U.S. Fish and Wildlife Service and the National Marine Fisheries Service. 

Since at least 1975, the term “harm” has been understood by both agencies to cover forms of habitat modification that impact protected species. In 1981, the agencies finalized a regulation defining the terms as we know them today. For harm, the agencies determined that harm “may include significant habitat modification or degradation where it kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.” 

The Supreme Court upheld this definition in the 1995 case Babbitt v. Sweet Home. There, the timber industry challenged the 1982 regulatory definition, arguing that the agencies exceeded the power granted to them by Congress. Writing for a 6–3 court, Justice Stevens upheld the definition, finding that defining harm in this way was consistent with the legislative intent of Congress to stop extinction, “whatever the cost.” 

EPIC has a long history of habitat protection through the Endangered Species Act. In my favorite EPIC case, Marbled Murrelet v. Pacific Lumber Company and Marbled Murrelet v. Babbitt, EPIC successfully defended occupied murrelet habitat on private forests that were slated for logging by proving that the logging activity would disrupt the marbled murrelets that utilized those forests. Through these lawsuits and others, we created a sea change: the Headwaters Forest Agreement, creating Headwaters Forest Reserve, and ultimately the cessation of old-growth logging in the redwoods.

In April, the Trump Administration began legal work to rescind the 1982 definition, publishing a draft of the rulemaking in the Federal Register. The Trump Administration claims that the rescission is required, as the definition exceeded the authority of Congress. We disagree.  The Trump Administration is fast-tracking the rule change, refusing to do the required environmental analysis on the effects of their rule change. 

EPIC is submitting comments in opposition and will be ready to challenge the rescission. But to be clear, we don’t think that Trump’s rescission means much. At least so far, the Trump Administration is only rescinding the existing regulatory definition, not replacing it with another. Thus, the term “harm” will lack a definition in the Code of Federal Regulations, but the prohibition on actions that harm protected species still exists in the law. We believe that the best reading of the Endangered Species Act compels an understanding that a prohibition on harm also means a prohibition on habitat modification that injures protected species.