The Trump Administration on Friday finalized a rule narrowing the prohibition against "taking" endangered species by removing regulatory language allowing federal wildlife agencies to consider how species are harmed by habitat destruction.
The Commerce and Interior Departments on Friday announced the finalization of the rule, which rescinds the definition of "harm" in current ESA regulations, limiting enforcers’ consideration of actions affecting the environment around the species, like logging.
Current rules make it illegal to take listed species without authorization. The statute defines “take” as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect such animals. Previous regulations have assigned definitions to some of these concepts, including harm, which previously meant “an act which actually kills or injures wildlife,” including “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, breeding, feeding or sheltering.”
While some agricultural producers’ activities may affect habitat of endangered species on or near their farms, the change would make it less likely they would face penalties for modifying habitat.
“For years, federal agencies abused the ESA to obstruct lawful land use and burden American families and businesses,” Interior Secretary Doug Burgum said in a release. "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.”
The agency first proposed rescinding the definition last spring. In their proposal, agency leaders pointed to the 1995 Supreme Court decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon in which the Supreme Court upheld the FWS regulation using Chevron deference, a doctrine that required courts to defer to agency expertise when laws from Congress are not explicit. The court overturned Chevron last year.
“We have concluded that our existing regulations, which still contain the definition of 'harm' contested in Sweet Home, do not match the single, best meaning of the statute,” they wrote, adding that the regulations’ interpretation of the statutory language “did not properly account for over a thousand years of history, and is inconsistent with the structure of the ESA.”
They added that the ESA defines the broader definition of “take,” and “further elaborating on one subcomponent of that definition — “harm” — is unnecessary in light of the comprehensive statutory definition.”
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