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ESA “harm” redefined
The Trump administration finalized a rule that narrows what qualifies as “harm” under the 1973 Endangered Species Act, with the U.S. Department of the Interior and the U.S. Department of Commerce announcing that the definition of “harm” would be rescinded from the ESA.
“Environmentalists decry Trump admin's changing of 'harm' in Endangered Species Act The definition was integral to the ESA’s role in preventing extinction”
ABC News said the rescinded definition had been “an act which actually kills or injures wildlife,” and it included “significant habitat modification or degradation” where it “actually kills or injures wildlife” by impairing essential behaviors.
The National Law Review reported that on July 14, 2026, the U.S. Fish and Wildlife Service and National Marine Fisheries Service published a final rule rescinding the regulatory definition of “harm,” and that the Services would rely solely on the ESA statutory text as interpreted by Justice Scalia’s dissent in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon.
The National Law Review added that under this view the Services “will not view habitat modification that results in indirect and accidental injury to a wildlife population as ‘take’ within the meaning of the Act.”
Lawsuits and competing claims
Environmental groups challenged the change, with ABC News reporting that the Center for Biological Diversity, the Sierra Club and Conservation Law Foundation filed suit against the Trump administration.
Earthjustice attorney Kristen Boyles said in a statement, "The Trump Administration repeal violates the core purpose of the statute and decades of legal precedent, including from the U.S. Supreme Court."
The National Law Review described the Services’ approach as relying on Justice Scalia’s dissent in Sweet Home, arguing that under this view the Services “now will not consider habitat modifications that indirectly lead to the death or injury of a population of animals.”
In contrast, ABC News quoted Secretary of the Interior Doug Burgum saying, "This action restores common sense, respects private property, provides much-needed certainty for landowners".
What’s at stake next
The dispute over “harm” is tied to how the ESA will be enforced going forward, and the National Law Review warned the final rule will affect how the Services implement ESA consultation, enforcement, and incidental take permit programs.
“The regime applicable to protected species is often assessed in light of administrative case law”
The National Law Review said the rescission will impact ESA Section 7 consultation, ESA Section 10 Incidental Take Permits (ITPs), and ESA Section 9 enforcement programs, while noting that Section 7 requirements should be “largely unaffected” in some cases.
CT Mirror reported that a lawsuit filed Tuesday seeks to stop the U.S. Fish and Wildlife Service and other federal agencies from removing habitat destruction from the government’s definition of “harm,” and it said the case was filed in a federal district court in Seattle.
In the same report, Conservation Law Foundation attorney Sarah Shahabi argued that migratory shore birds such as the piping plover and rufa red knots are at particular risk because development can destroy beaches that serve as “critical stop-over points for the birds to rest and feed during their long migrations.”
