The greatest threat to animals in the US and globally is the destruction of their habitat — replacing grasslands with farms, cutting forests for timber, building suburbs atop wetlands. It’s the main reason why hundreds of species have been listed under the Endangered Species Act, which gives federal protection to species that are currently at risk of extinction or are about to be.
That’s what makes a recent move by the Trump administration both confusing and — according to many environmental advocates — incredibly alarming.
In a rule published earlier this month, the administration determined that, in many cases, destroying the habitat of federally threatened and endangered species is no longer explicitly illegal, even if doing so could ultimately drive them extinct. The rule upends half a century of regulatory precedent that survived many Republican administrations. Environmental advocates also say it runs counter to the very intent of the Endangered Species Act, which Congress passed in 1973 with near-unanimous bipartisan support (and which Richard Nixon signed into law).
While the Trump administration has made several recent decisions that weaken protections for endangered species — amid what many scientists call an extinction crisis — this one may have the most far-ranging consequences. Here’s why.
A rule that could blow up the ESA
The Endangered Species Act is a complicated law, but on a simple level it makes it illegal for anyone to “take” endangered species without authorization from the government. “Take” is defined in the law by 10 different terms: harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.
It’s the meaning of one of those words — harm — that matters most here. Up until the recent rule, the government’s definition for harm included destroying an animal’s habitat if it impairs essential behaviors, such as breeding. That might include, say, building a hotel on top of a beach that endangered sea turtles use for nesting. Such a definition was important because destroying the habitat of an already imperiled species could push it over the edge, wildlife advocates say. What’s more is that, according to the language of the law itself, the purpose of the ESA includes conserving “ecosystems upon which endangered species and threatened species depend.”
Get in touch
Got a tip or feedback on this story? Reach out to reporter Benji Jones at benji.jones@vox.com.
The Trump administration, however, just threw out that definition of harm and the unambiguous protection it has long afforded habitat. And while it didn’t offer a new definition, the administration said that it agrees with a much narrower interpretation of the term — articulated three decades ago in a dissent by the late conservative Justice Antonin Scalia — that only includes actions that directly and intentionally harm individual animals, such as capturing a sea turtle to eat or keep as a pet.
“For years, federal agencies abused the ESA to obstruct lawful land use and burden American families and businesses,” Doug Burgum, Secretary of the Interior Department, which oversees endangered species protections, said in a statement. “That approach turned routine activity into a regulatory trap, drove up costs that impacted people’s lives, and expanded federal authority beyond what Congress intended. This action restores common sense, respects private property, provides much-needed certainty for landowners and follows the statute Congress actually passed.” (The Interior Department declined to provide a comment on our reporting, pointing us instead to its press release and the notice in the Federal Register.)
Under the new rule, set to take effect in September, “harm” no longer explicitly includes actions that may accidentally or indirectly doom a wildlife population to extinction. A company building luxury villas on a private beach that endangered sea turtles need for survival would not unambiguously be considered take — and thus be illegal — unless the company knew it’d crush turtle eggs or the turtles themselves in the process. Neither would logging old-growth forests that endangered birds inhabit, building wind turbines that are known to kill endangered bats, or constructing a road that would likely get endangered snakes run over.
“It really completely blows up the Endangered Species Act,” said J.B. Ruhl, a lawyer at Vanderbilt University and a leading expert on the ESA.
To be clear, these sorts of actions were never forbidden outright — and this is key. An important feature of the ESA is that, with some exceptions, it allows companies, counties and states, and federal agencies to kill or harm endangered species, as long as they take steps to limit their impact. Indeed, nonfederal organizations of all kinds have, for decades, received federal permits that allow them to “take” endangered species, in exchange for coming up with a plan to minimize the harm they may cause. In Hawaii, for example, an electric utility that operates power lines that can injure endangered birds takes steps to prevent collisions and funds an avian rehab facility that helps offset some of its impacts.
The problem now is that these conservation plans — which wildlife advocates say are critical for species recovery — are rooted in the defunct definition of harm, according to Daniel Rohlf, a law professor at Lewis & Clark Law School.
The whole purpose of these so-called Habitat Conservation Plans is to lessen the incidental, or accidental, impacts on endangered species, while at the same time allowing companies to still build and operate legally. But in rescinding the former definition of harm, the Trump administration has essentially just said that all that incidental killing is no longer illegal anyway. That may undermine future Habitat Conservation Plans and those that have yet to be finalized. This “pulls the rug out from under literally decades of work,” Rohlf said of the recent rule.
Next up: The Supreme Court?
Even under the new rule, the ESA still has some important protections for habitat. When the government lists a species as threatened or endangered, for example, it usually designates what’s called “critical habitat” — areas that it deems essential to the survival of the species. Under the ESA, all federal agencies have to ensure that their actions, such as permitting new mines or wind farms, do not destroy critical habitat or jeopardize the existence of a species. Those responsibilities are still intact.
It’s also not certain that the new rule will stick. Several environmental groups have already sued the administration to try to reinstate the former definition, alleging, among other claims, that rescinding the definition of harm violates the language and the intent of the ESA. This challenge is likely to reach the Supreme Court, Ruhl says.
To understand what could happen next requires some important context.
Until two years ago, courts typically deferred to federal agencies to determine how to interpret ambiguous language in laws like the ESA. This legal principle was known as the Chevron doctrine. It was the Fish and Wildlife Service, for example, that published a rule decades ago clarifying that the ambiguous word harm includes destroying an endangered animal’s habitat. That interpretation survived a famous 1995 Supreme Court case, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, in which Oregon landowners and the timber industry argued that the government defined “harm” too broadly. The court decided that an “ordinary understanding” of that term “naturally encompasses habitat modification” that injures or kills endangered species.
In the summer of 2024, however, the Chevron doctrine was overturned. That means the power to interpret unclear language in laws now rests with the courts.
The Trump administration has seized on this fact, Rohlf said. Instead of redefining what harm means, the administration simply axed the existing definition that included impacts to habitat that injure wildlife. It will now be up to the courts to decide what is considered harm in future cases brought under the ESA — such as if, say, an environmental group sues a developer, claiming that it destroyed essential habitat for an endangered species in violation of the Act. The administration did not stop short of making clear what it thinks: In the preamble to the rule, it said harm should only include actions made directly and intentionally against endangered organisms.
Wildlife advocates point out that the Supreme Court already determined that a definition of harm including habitat destruction is reasonable. That’s what Babbitt v. Sweet Home was about. But because that case rested, in part, on the now-overturned Chevron doctrine, the courts — and perhaps eventually the Supreme Court — may relitigate the meaning of harm. (The Supreme Court did make it clear that it won’t call into question decisions that relied on the Chevron doctrine before it was overturned.)
Ultimately, it’s hard to argue that harming an endangered species, in a plain reading of the word, does not include destroying vital habitat that it needs to survive or other actions that kill or injure them indirectly, legal scholars told me. It’s also clear that Congress saw it this way when it wrote the law. There’s a whole section of the ESA about granting permits for “incidental take,” which could include damaging an animal’s habitat, according to Holly Doremus, a law professor at the University of California, Berkeley. That section only makes sense, she says, if you’re interpreting harm to include actions that accidentally and indirectly kill or injure species — which is far broader than the definition that the Trump administration would like to use.
For the Trump administration to really get what it wants, Doremus said, it would need to remove the word “harm” from the ESA altogether. Short of that, she said, Trump officials “want to make ‘harm’ as ineffective a statutory term as possible.”
Should the administration succeed — should the courts determine that “harm” does not apply to destroying the habitat of endangered species — environmental advocates warn that the ESA will lose much of its extinction-preventing power.
“If this decision is allowed to stand, it eviscerates the statute on which imperiled species conservation has rested in this country since 1973,” said Jane Davenport, a senior attorney at Defenders of Wildlife, an advocacy group. “This is truly a stake through the heart of the ESA.”
If you're seeking reliable vent solutions, look no further than Mr. Lint Guy. Specializing in dryer vent cleaning, Mr. Lint Guy offers effective solutions to prevent fire hazards and improve dryer efficiency. Whether you're dealing with stubborn dryer valley problems or just need regular maintenance, Mr. Lint Guy has the expertise to keep your home safe and your dryer running at its best.
0 Comments