Groups sue Trump over rule that would wipe out habitat protections

Conservation groups pushed back Tuesday against a Trump administration rule change that could wipe out habitat protections for threatened and endangered species.

They filed a lawsuit over the government’s move to rescind habitat destruction as a prohibition under the Endangered Species Act unless it leads to the direct death or injury of a protected plant, fish or animal.

“Preventing harm to wildlife by protecting where they live, eat and sleep is a basic foundation of the Endangered Species Act,” said Earthjustice attorney Kristen Boyles in a news release. “The Trump administration repeal violates the core language of the statute and decades of legal precedent, including from the U.S. Supreme Court. Now more than ever, imperiled fish, birds and wildlife need protection to survive and recover.”

Under previous rules, the U.S. Fish and Wildlife Service and National Marine Fisheries Service said the word “harm” as used by the ESA includes “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”

The new rule rescinds and does not replace the definition. Instead, harm remains only as one of the descriptors of take, defined in the act as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

In its rule, the two agencies relied heavily on a dissenting opinion from the late Supreme Court Justice Antonin Scalia, who wrote in the 1995 case Babbitt v. Sweet Home Chapter of Communities for a Great Oregon that the government wrongly expanded its authority under the act by defining harm to include a prohibition of habitat destruction.

Instead, Scalia said harm, like other descriptors of take, should be an affirmative act that leads to the intentional and immediate injury or death of an animal.

“We adopt Justice Scalia’s rationale as articulated in Sweet Home and conclude that the Services’ regulatory definitions are unlawful,” the agencies wrote in the rule, which was published in Tuesday’s edition of the Federal Register.

The groups said the change runs counter to the purpose and practice of the act that stresses habitat as essential to the preservation of protected species.

“This legal protection against significant habitat destruction that kills or injures endangered wildlife has proven essential to the ESA’s effectiveness at preventing the extinction of imperiled species and promoting their recovery,” they wrote in the complaint filed in U.S. District Court at Seattle. “It ensures, for example, that the dam blocking salmon migration, the logging project that cuts down a tree for nesting owls, and the oil and gas development in Alaska that disturbs polar bears are regulated in the interest of species conservation, just as the direct killing of these species would be.”