FWS and NOAA propose to narrow reach of Endangered Species Act

The Endangered Species Act (ESA) prohibits the “take” of endangered species. 16 U.S.C. § 1538(a)(1)(B)-(C). The statutory definition of “take” is “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). The Fish and Wildlife Service (FWS) and National Oceanic and Atmospheric Administration (NOAA) issued regulations that defined “harm” as any “act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” 50 CFR § 17.3, 50 CFR § 222.102. Thus, under the regulations, an act or omission that injures a protected species constitutes take, without regard to whether the harm was intended or a direct result. 

Applying Chevron v. NRDC, 467 U.S. 837 (1984), the Supreme Court in 1995 upheld the regulatory definition of “harm.” Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. 515 U.S. 687. The majority in Babbitt held that the “latitude the ESA gives the Secretary in enforcing the statute, together with the degree of regulatory expertise necessary to its enforcement, establishes that we owe some degree of deference to the Secretary's reasonable interpretation.” Id. at 703-04. Justice Scalia dissented on the grounds that the regulatory definition was too broad. Applying the canon of noscitur a sociis, Justice Scalia wrote that the definition of “harm,” like the other nine verbs in the definition of “take,” should be construed to require an “affirmative act” that is “directed immediately and intentionally against a particular animal,” and not an act or omission that “indirectly and accidentally” injures an animal. Id. at 719-20.

Today’s notice states that, based on Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 400 (2024), a regulation must reflect not merely a permissible, but the “best,” interpretation of a statute. Concluding that the regulatory definition of “harm” does not represent the “best” reading of the statute, the agencies propose to rescind the regulations that define “harm” and not formally promulgate a new regulatory definition. Instead, the agencies state that they intend to rely solely on the statutory definition of “take.” The notice suggests that the agencies will interpret the statute in accordance with Scalia’s dissent in Babbitt, that is, to cover only actions “directed immediately and intentionally against a particular animal.” Excluding from the ESA’s prohibition of “take” actions that, without specific intent to harm a protected species, nevertheless foreseeably do so, would represent a major change in the law as applied for the last 30 years.

According to the notice, FWS and NOAA have not yet decided whether rescission of the definition of “harm” will require them to prepare an Environmental Impact Statement under the National Environmental Policy Act. However, the notice suggests that they will conclude that it does not. The notice states that this regulatory action does not require consultation under Section 7 of the ESA. These determinations could be a focus for future challenges to the agencies’ interpretation of “harm” and “take.” 

The comment period for this proposed rule ends on May 19, 2025. Unless and until final action is taken to rescind the definition of “harm,” that definition remains in place. Further, if and when the definition is rescinded, there is likely to be litigation, by citizens or environmental groups, testing whether indirect and inadvertent actions constitute “take.” It remains to be seen whether courts will agree with the agencies’ new interpretation as expressed in today’s notice. Therefore, developers or others who are contemplating activities that could affect protected species or their habitats should consult legal counsel to assess the risk of liability under the ESA.