Defenders Sends Notice of Intent to Sue the Trump Administration over Rescission of ‘Harm’

Defenders of Wildlife today sent a letter to the Department of Interior and the Department of Commerce signaling its intent to sue over the administration’s rescission of the long-standing definition of “harm” under the Endangered Species Act. Under the now-rescinded regulatory definition, significant habitat destruction that led to death or injury of protected species constituted illegal “take” unless authorized. Now, the U.S. Fish and Wildlife Service and National Marine Fisheries Service won’t consider such habitat destruction to be prohibited.

“The law has been clear for decades: destroying the habitat — the home — of endangered wildlife harms that species that must be appropriately authorized and minimized. Rescinding this definition is wholly out of bounds and misaligned with the vast majority of Americans who support protecting and recovering endangered species,” said Jane Davenport, senior attorney at Defenders of Wildlife. “We will use the full force of the law to fight back and prevent industry from unfettered destruction of critical forests, streams, deserts, oceans and coastlines.”

For more than four decades, the definition of “harm” has served as a cornerstone of ESA implementation and enforcement, ensuring significant habitat modification or degradation that kills or injures listed species by impairing essential behaviors like feeding, breeding and sheltering are appropriately authorized, minimized and mitigated.  

Congress enacted the ESA with overwhelming bipartisan support in 1973, establishing a clear mandate to conserve the ecosystems upon which endangered and threatened species depend. That mandate was reinforced by the Supreme Court’s 1995 ruling in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, which upheld the inclusion of habitat destruction in the regulatory definition of “harm,” as well as by congressional amendments supporting the importance of protecting listed species from habitat-based take. The decision to abandon this longstanding and broadly supported regulation ignores this legal history and the overwhelming scientific evidence linking habitat loss to extinction.

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