Guest Opinion
The Endangered Species Act notably marked its 50th year on December 28, 2023, and I wrote about it here. It is known as one of the most effective environmental statutes for protecting the environment and can halt development projects if they trigger the prohibitions of the Endangered Species Act.
There are two major parts of the Endangered Species Act. Section 4 describes how to list a species as endangered or threatened, the two statutory statuses for a species. Section 7 requires consultation by any federal agency if it anticipates projects affecting endangered or threatened species, and Section 9 prohibits anyone within the jurisdiction of the United States from trading in endangered or threatened species or their parts, or from “taking” an endangered or threatened species. “Take” is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.
At least until September 14, 2026, when the federal government wants to finalize the removal of this definition of “take” from the regulation that further explains the statutory definition. Since 1975, the definition of “take” has included any significant environmental modification or degradation that has such effects, which is included within the meaning of “harm.”
The U.S. Supreme Court agreed in 1995 that this definition of “harm” was a reasonable one on the part of the U.S. Fish and Wildlife Service and upheld the regulatory definition. In the recent proposal to change the rule, published July 14, 2026, the Department of the Interior explained that part of its reasoning for rescinding the definition of “harm” was that it was “outdated” and that it preferred Justice Scalia’s dissent in the 1995 opinion over the majority opinion.
Because we cannot cherry-pick the dissent we like better and recognize it as the law of the land, surely that is not what the Department intended to suggest. Upon further reading, the logic it applies is, in essence, that because this case was decided using the framework of a case that was later overruled (Chevron), this case must also be overruled. Despite the U.S. Supreme Court specifically stating that overruling Chevron did not overrule cases decided under the Chevron framework, that is the logic being used.
So why does the definition of “harm” matter?
It is the definition of “harm” that extends protection to the habitat of an endangered or threatened species. The proposed withdrawal of the “harm” definition would no longer prevent development projects that destroy the habitat needed for an endangered or threatened species to survive.
For example, the endangered bird in the 1995 case could not survive if the only tree in which it nested were destroyed. Common sense tells you that if the bird cannot nest, it cannot produce another generation, and it eventually becomes extinct. The common sense administration just lost its common sense here.
Oddly, the administration appears to have conflated the regulatory definition (an Executive Branch function) with the statutory definition (a Legislative Branch function). “Harm” is one of the words in the statutory definition of “take,” which remains the law. The 1995 opinion addressed the interpretation of the word “harm” in the statute, which, of course, cannot be rescinded by the Executive Branch.
Response to rescinding the regulatory definition of “harm” was immediate
Several organizations immediately sought judicial stays to prevent the Executive Branch from rescinding the rule. A stay, in this case, simply asks the court to stop the agency from taking action until it reviews the legality of that action.
While the agency has taken administrative steps consistent with the Administrative Procedure Act, it must also explain why it is reversing its previous decision from 1975. Whether saying the definition is “outdated,” or that Justice Scalia’s dissent is more persuasive, provides a sufficient basis to reverse the agency’s previous course of action is something the judiciary will determine, consistent with existing case law.
Scalia’s dissent
The agency would like to rely on Justice Scalia’s dissent from the 1995 case, which suggests that “harm” must be intentionally directed at an individual member of the species. Under that interpretation, harm to habitat alone would not qualify.
Looking back at the ESA
A 2019 study found that 99% of listed endangered species have been saved from extinction. That is not a bad result for a federal environmental program.
In 1975, the definition of “harm” was interpreted to include the destruction of habitat essential to endangered or threatened species, following the rulemaking that implemented the 1973 statute.
Common sense tells us that Congress likely understood that the habitat of an endangered or threatened species was essential to its survival when it required consultation before projects affecting that habitat could proceed. The U.S. Supreme Court has not been reluctant to apply common sense in its analysis. It is hard to see how that is “outdated.”
Redrafting the rule as a proposed rule could still be done in compliance with the Administrative Procedure Act. It would still require a justification for reversing the agency’s longstanding position, so neither the legal process nor the 60-day period before the rule becomes final would change.
The common sense administration should return to common sense on this rule.
To read more articles by Professor Sutton go to: https://profvictoria.substack.com/
Professor Victoria Sutton (Lumbee) is a law professor on the faculty of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board to the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Indigenous communities in the United States.
