Feds proposing big change to Endangered Species Act rules
LEWISTON – The Trump administration is proposing a dramatic shift in the way the Endangered Species Act has been interpreted for decades.
The U.S. Fish and Wildlife Service and National Marine Fisheries Service, the two federal agencies charged with implementing the act, said they want to narrow the definition of what it means to harm protected species to exclude significant alteration or damage to their habitat.
If adopted, it would reverse decades of practice and precedent and could upend protections for species like spring chinook salmon, grizzly bears and spotted owls.
The act, adopted in 1973, forbids the “take of protected species” and defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
Implementing regulations authored by the agencies reasoned that altering a species habitat to the extent that it would result in its death qualifies as harm. That interpretation was upheld in the 1995 Supreme Court case Babbitt v. Sweet Home Chapter of Communities for a Great Oregon.
The plaintiffs – landowners, loggers and the timber industry – sued Interior Secretary Bruce Babbitt arguing that the definition of harm to include the potential death of spotted owls in the Pacific Northwest and red-cockaded woodpecker in the southeastern United States via habitat alteration caused by logging was too broad.
The court in a 6-3 decision sided with Babbitt and the U.S. Fish and Wildlife Service. Justice Antonin Scalia wrote the dissenting opinion and argued harm should be defined as actions that result in the direct death or injury to individual animals but not actions that may indirectly kill them.
Scalia also said the court should not have granted deference to the agencies under the then-intact Chevron Doctrine.
In a joint news release announcing the proposed change, the agencies cited Scalia’s dissent describing it as “powerfully reasoned,” and noted the Chevron Doctrine that gave federal agencies discretion to interpret vaguery within laws passed by Congress was overturned by a 2024 Supreme Court decision.
“This proposed rule aims to align the definition with the plain text of the ESA, as informed by historical and legal interpretations of “take” as an affirmative act directly affecting wildlife,” the agencies said in their announcement.
The Pacific Legal Foundation, a conservative, public-interest law firm, welcomed the move.
“The Service’s current regulatory definition of ‘harm’ is unlawful, imposes no meaningful limitation on the agency’s authority to regulate private conduct, and has led to significant abuse,” Charles Yates, an attorney with the Pacific Legal Foundation, said in a statement provided to the Tribune. “The Supreme Court’s decision in Sweet Home – issued at the height of the Chevron misadventure – is poorly reasoned, and in no way compels continued application of the Service’s current definition.”
Noah Greenwald, endangered species coordinator for the environmental group Center for Biological Diversity, said the change would run counter to the whole purpose of the Endangered Species Act.
“It is clear that if you dam the stream that a chinook salmon needs to migrate through, you are harming that species,” he said. “They are essentially saying ‘take’ only means the direct, intentional killing of something or shooting something or clubbing something. It’s a very narrow and tortured read of prohibition.”
Greenwald said if the rule change is ultimately adopted it could lead to logging of old growth forests that would harm protected species like spotted owls, Canada lynx and chinook salmon.
“This is all part of a wholesale attack on environmental protections,” he said. “Protections for water, protections for air, for climate and for wildlife. It is attempting to undo protections as rapidly as they can and as completely as they can.”
The proposed rule change as well as links to submit comments are available at bit.ly/4jHmdzh. The comment deadline is May 19.