Trump Administration Rescinds ‘Harm’ Definition, Defenders Prepares for Court

In a devastating blow to wildlife, the Trump administration today formally rescinded the regulatory definition of “harm” under the Endangered Species Act, seeking to eliminate the long-standing legal interpretation that habitat destruction that leads to death or injury of protected species constitutes illegal “take” unless authorized. Defenders of Wildlife intends to sue over violations of the Endangered Species Act.

“The administration’s erroneous and nonsensical interpretation of the term ‘harm’ guts the ability of the Endangered Species Act and the federal government to protect the habitat of wildlife already at risk of extinction because the places they live have been destroyed or fragmented,” said Andrew Bowman, president and CEO of Defenders of Wildlife.  “We intend to fight back with the full force of the law to defeat this attack and innumerable others by the administration on the statutes and regulations that protect America’s cherished wildlife.”

“The law, the science and the American public’s opinion do not support this decision,” said Jane Davenport, senior attorney at Defenders of Wildlife. “As we face an extinction crisis unprecedented in human history — fueled largely by habitat loss — this administration has decided that handouts to extractive industries are worth the risk of losing irreplaceable parts of this country’s natural heritage forever.”

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 and mitigated.  

The removal of these habitat protections could have devastating consequences for threatened and endangered species like the Florida manatee and steelhead trout. Manatees, which depend on healthy seagrass beds for feeding, could face increased threats from coastal development, dredging and pollution, all of which degrade water quality and destroy their food sources. Under the new rule, the loss of seagrass, even if it leads to starvation and death for these animals, will no longer be considered illegal “harm.”  

Similarly, steelhead trout, who migrate up waterways to spawn and require clean gravel beds and specific water conditions to do so, could be blocked from these migrations by dams, or otherwise have water quality degraded by logging and mining. The decline of these two species and many others will ripple through ecosystems, disrupting food webs and contributing to a further erosion of biodiversity that is already in a state of crisis.

“Without protecting species from death and injury caused by habitat destruction, many listed species are never going to recover and will instead remain on life support or descend towards extinction because they’ve lost the resources they need to thrive,” said Davenport. “With this unlawful removal of the regulatory definition of ‘harm,’ the administration is looking to write a blank check allowing industry to chop down the tree that is home to a red-cockaded woodpecker or to pollute the foraging habitat of a Florida manatee.”

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. Today’s decision to abandon these long-standing and broadly supported protections ignores this legal history and the overwhelming scientific evidence linking habitat loss to extinction.

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