Trump Administration Rescinds the ESA's "Harm" Rule, Ending Habitat Protection for Endangered Species

Details

On Friday, July 10, 2026, the Department of the Interior and the Department of Commerce announced a final rule rescinding the federal government's longstanding definition of "harm" under the Endangered Species Act. The single-word change carries enormous consequences: for more than 50 years, the definition of "harm" has been the mechanism through which the Act protected the places imperiled animals live. By deleting it, the administration moved to open the habitats of endangered species to farming, drilling, mining, logging and real estate development in what environmental groups described as the most severe rollback of wildlife protections in half a century.

What the Rule Does

The Endangered Species Act's Section 9 makes it unlawful to "take" a listed species. The statute defines "take" to include a list of verbs—"harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect." Since the late 1970s and early 1980s, the wildlife agencies have defined the word "harm" within that list by regulation to mean an act that "actually kills or injures wildlife," including "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." That habitat clause is what allowed the Act to reach the destruction of the forests, wetlands, beaches and rivers that species depend on.

The final rule, carrying docket number FWS–HQ–ES–2025–0034, removes the definition of "harm" entirely from the regulations of both the U.S. Fish and Wildlife Service (50 CFR Part 17) and NOAA's National Marine Fisheries Service (50 CFR Part 222). Critically, the agencies did not replace it with a narrower definition; they simply deleted it, leaving the statutory term "harm" to be read according to what the administration calls its "plain meaning." The rescission is scheduled to take effect 60 days after publication in the Federal Register.

In practical terms, as Jane Davenport, a senior attorney at Defenders of Wildlife, explained to the Times, people and governments will still need permits for actions that would directly "crush or bury" endangered animals, but not for "felling a tree or polluting a river that the animal relies on." A property owner who previously had to obtain an incidental-take permit and craft a "habitat conservation plan" before destroying occupied habitat would, under the new rule, face no Section 9 liability for doing so, because habitat destruction alone would no longer count as a prohibited take.

The Legal Backdrop: Babbitt v. Sweet Home

The habitat interpretation is not a fringe reading. In 1995, in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, the Supreme Court upheld it by a 6–3 vote. Property owners and logging interests had argued—much as the Trump administration argues now—that "harm" should mean only the direct killing or wounding of an animal, not modification of its habitat. Writing for the majority, Justice John Paul Stevens rejected that view, holding that the broad definition was a reasonable reading of the statute consistent with the Act's purpose of preventing extinction. The case arose from the fight over old-growth logging and the northern spotted owl, and the definition it blessed has anchored habitat protection ever since.

The administration's new rule leans instead on the dissent in that case. According to the rule's own legal reasoning, the agencies adopt the logic of Justice Antonin Scalia's Sweet Home dissent, which contended that "take" historically refers to direct affirmative acts against particular animals rather than indirect habitat effects, and invoke the interpretive canon noscitur a sociis—that a word is known by the company it keeps—to argue that "harm," surrounded by verbs like "shoot" and "trap," must mean a similarly direct act.

The linchpin of the reversal is the Supreme Court's 2024 decision in Loper Bright Enterprises v. Raimondo, which overturned the Chevron doctrine of judicial deference to agency interpretations of ambiguous statutes. Because the Sweet Home majority had relied in part on Chevron deference to sustain the habitat definition, the administration argues that after Loper Bright the agencies must identify "the single, best meaning of the statute"—and it concludes the old definition does not match it. Whether that reasoning holds is itself contested: Sweet Home did not rest solely on deference, and legal scholars note that Loper Bright expressly left prior statutory holdings that relied on Chevron subject to ordinary rules of precedent rather than automatic reversal.

Which Species and Industries Are Affected

Habitat loss is not a marginal threat. An intergovernmental body of leading scientists has found habitat modification and degradation to be the top driver of biodiversity loss worldwide, and it is the primary reason most listed species face extinction in the first place. Because the rule strips away the tool that addressed that leading threat, its potential reach is broad.

The Center for Biological Diversity singled out spotted owls, Atlantic salmon and Florida panthers among the thousands of species at risk. The Times illustrated the mechanism with several examples of animals that could be harmed by habitat destruction without any individual being immediately killed:

• Piping plovers, which return each spring to the same undisturbed beaches to nest; a beachfront developed over the winter, after the birds migrate south, would leave returning plovers with nowhere to breed.
• Red-cockaded woodpeckers, which need mature pine trees to hollow out roosting cavities; felling those trees would not directly injure a bird but would leave the extended family unable to survive.
• California tiger salamanders, which breed in seasonal ponds; draining a pond in summer would deny the returning salamanders the water they need to produce a next generation.

On the other side of the ledger, the industries that lobbied for the change are those whose projects most often intersect with occupied habitat: oil and gas, mining, timber, agriculture and land development. The administration's own materials cited flashpoints such as energy restrictions in the Permian Basin tied to the dunes sagebrush lizard, grassland protections for the lesser prairie-chicken across five states, and the historic spotted-owl timber conflict. The National Mining Association applauded the rule, with general counsel Tawny Bridgeford saying the "harm" definition had "long been abused to serve as a punitive obstacle impeding critical projects." Oil and gas trade groups, including the American Petroleum Institute, had argued in comments that harm must involve direct injury to a particular animal.

The Administration's Rationale

The administration frames the rescission as a restoration of the law's original meaning and a defense of property rights against regulatory overreach. Interior Secretary Doug Burgum said in a statement that "for years, federal agencies abused the E.S.A. to obstruct lawful land use and burden American families and businesses," adding that the old approach "turned routine activity into a regulatory trap, drove up costs that impacted people's lives, and expanded federal authority beyond what Congress intended." In the departments' news release, Burgum said the action "restores common sense, respects private property, [and] provides much-needed certainty for landowners." Commerce Secretary Howard Lutnick cast it as returning the Act to its core conservation purpose "without sacrificing economic growth," and Fish and Wildlife Service Director Brian Nesvik said the government could "protect species and respect communities at the same time."

The strongest good-faith version of the administration's case has three parts. First, the textualist argument: after Loper Bright, agencies are obliged to adopt the best reading of a statute, and the administration contends "take"—a term with a hunting-law lineage—more naturally denotes direct action against animals than indirect habitat effects, a reading a Supreme Court justice endorsed in dissent. Second, the certainty argument: the "harm" standard's dependence on whether habitat modification "significantly impairs" essential behaviors can be unpredictable for landowners, and removing it provides a clearer, brighter line. Third, environmental lawyers themselves acknowledge that outright project blockage under the habitat rule was relatively rare; more often, developers negotiated habitat conservation plans, which the administration characterizes as costly process. Officials also stress that core ESA machinery remains: species listings, designated critical habitat, the Section 7 requirement that federal agencies consult before actions that could jeopardize a species, and the direct-take prohibition all survive the rule.

Critics respond that those remaining tools cover a narrower field—Section 7 reaches only federal actions, not private land use—and that the practical effect is to remove the main federal check on habitat destruction by private parties. They also note what the administration did not do: legal scholars pointed out that the government conducted no scientific research into the impact of the change, a step that would ordinarily precede a rule of this magnitude. Lynn Scarlett, a deputy interior secretary under President George W. Bush, said the change was "undermining the fundamental purpose of the Endangered Species Act." Gary Frazer, who ran the Fish and Wildlife Service's endangered species program for two decades before retiring in 2025, explained that modifying habitat "can easily harm individual animals without intentionally or immediately killing or injuring them."

Public Comment and State Opposition

When the rule was proposed in April 2025, it generated an enormous and lopsided public response. According to an analysis by The New York Times that used artificial intelligence, the proposal drew roughly 220,000 public comments, about 99 percent of them opposed; the agencies' own final rule reports receiving on the order of several hundred thousand comments during the comment period. The vast majority appeared to come from individuals, many pleading with the government to reconsider—"Everyone knows a species cannot live without its habitat," wrote one commenter from Port Angeles, Washington.

Notably, opposition was not confined to environmentalists or Democratic states. State wildlife agencies in some Republican-governed states urged the administration to reconsider. Bruce Kreft of the North Dakota Game and Fish Department warned that "threatened and endangered species are entirely dependent on healthy habitats" and that the change "would have dire consequences." Ted Will, then the director of Georgia's Wildlife Resources Division, wrote that "the greatest threat to the vast majority of species of greatest conservation need in Georgia... is habitat loss." Attorneys general from 16 states—including Arizona, California, Illinois and New York—called the rationale "arbitrary, capricious, an abuse of discretion and contrary to law," language that tracks the standard for overturning a rule under the Administrative Procedure Act.

Litigation

Environmental groups moved immediately to signal a court fight. Earthjustice, which had pledged a legal challenge, declared through attorney Kristen Boyles: "We will see the Trump administration in court," arguing there is "no scientific support, no legal support, no public support" for the rule. The Center for Biological Diversity's Tara Zuardo called the decision "a death knell for America's wildlife." The likely claims are twofold: that the rescission is contrary to the ESA and the holding of Sweet Home, and that it is arbitrary and capricious under the APA because the agencies did not examine the environmental consequences or adequately justify abandoning a five-decade interpretation.

The challengers have recent success to point to. On March 30, 2026, a federal court in the Northern District of California struck down a separate set of ESA regulations—rules from the first Trump administration in 2019 and weaker Biden-era 2024 revisions—finding they violated the statute by, among other things, failing to use the best available science and disregarding incremental damage to habitat. That ruling restored the Act to its earlier form and suggests lower courts remain receptive to habitat-protection arguments.

But the destination matters more than the departure. As Karrigan Börk, an environmental law professor at the University of California, Davis, cautioned, if a challenge reaches the current Supreme Court, its conservative supermajority could adopt the administration's reading and "enshrine the change," making it far harder for any future administration to restore habitat protections by regulation. In other words, litigation is a double-edged sword: it could vacate the rule, or it could convert a contestable regulatory reversal into settled constitutional-adjacent doctrine.

The Broader Pattern

The harm-definition rescission is the most sweeping in a series of Trump administration moves to loosen protections for imperiled species and to deregulate activities that affect them. In March 2026, a panel of administration officials voted to exempt oil and gas drilling in the Gulf of Mexico from measures designed to protect endangered whales, sea turtles and other marine life. Days after the harm rule was finalized, Trump signed proclamations on July 13 shrinking Utah's Bears Ears and Grand Staircase-Escalante national monuments by nearly 3 million acres combined—reducing each to less than 10 percent of its former size and reviving the record public-lands cuts he first attempted in 2017, which President Biden had reversed. The wildlife rollbacks parallel the administration's broader environmental-deregulation agenda, which has included efforts to unwind climate rules such as the EPA's greenhouse-gas endangerment finding. The common thread the administration emphasizes is deregulation, cost relief and property rights; the common thread its critics emphasize is the systematic dismantling of environmental safeguards built up over decades.

For now, the rule is final but not yet effective, and its fate rests with the courts. What is not in dispute is the magnitude of the change on paper: after 50 years, the federal government's primary legal tool for protecting where endangered animals live has, absent judicial intervention, been switched off. "A lot of our endangered species are on the edge," Börk said. "If you lose that species, it is gone."