More than 150,000 Americans oppose Trump administration proposal to eliminate endangered species habitat protections by redefining 'harm'; public comment period concludes on Fish and Wildlife Service rule change affecting ESA enforcement

Washington, D.C. —

Over 150,000 Americans have opposed a proposed rulemaking by the Trump administration to eliminate major habitat protections for endangered species in the U.S. after it was unveiled in April — and as the period for public input concludes today.

The proposed rule would rescind the U.S. Fish and Wildlife Service’s and National Marine Fisheries Service’s definitions of what counts as illegal “harm” to threatened and endangered wildlife under the Endangered Species Act (ESA). “Harm” is currently defined to include significant habitat modification that kills or injures species by removing necessities such as food and shelter.

The current definition of “harm” is an important tool for habitat conservation that has been in place for over 40 years and was upheld by the U.S. Supreme Court in 1995. It has been integral to the ESA’s role in saving more than 99 percent of species under its protection including the bald eagle, Florida manatee, gray wolf, and many other iconic American wildlife.

Even with the incredible success of the ESA, over 90 percent of listed species remain threatened by human-caused habitat destruction. If anything, the case for habitat protection under the ESA has grown even stronger over the years, with mountains of scientific evidence linking habitat and species’ survival.

The ESA was passed by Congress in 1973 with virtually unanimous bipartisan support. The lawmakers behind the ESA knew that scientists — not politicians — should decide whether vulnerable animal and plant species should be protected. In their spirit, three U.S. senators have officially demanded that the Trump administration explain how it came to its determination to eliminate habitat protections for U.S. wildlife and to answer whether industry influence was involved. Additionally, a group of the nation’s leading scientists and experts on wildlife sent a letter to the Trump administration urging it to abandon the proposed rule, which the scientists state “lacks any scientific basis and misinterprets the Endangered Species Act.” And 25 legal scholarsMay 19, 2025 Honorable Doug Burgum Secretary of the Interior Department of the Interior 1849 C Street, N.W. Washington DC 20240 Honorable Howard Lutnick Secretary of Commerce 1401 Constitution Ave NW Washington, DC 20230 Dear Secretary Burgum and Secretary Lutnick: We are writing to express vehement opposition to the proposed rule (FWS-HQ-ES-2025-0034) published by the U.S. fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) to rescind the regulatory definition of “harm” in the Endangered Species Act (ESA or the Act) regulations, published April 17, 2025, at 90 Fed. Reg. 16102. The proposed rule would rescind the regulatory definition of ‘harm,’ defined as any significant habitat modification or degradation that kills or injures wildlife and is an attempt at rescinding widespread habitat protections for species protected under the ESA. The undersigned are professors of natural resources and environmental law at law schools around the country who are concerned that the broad language of the proposed rule gravely impacts protections for imperiled species that Congress clearly intended for the ESA to provide.1 The proposal to rescind the regulatory definition of ‘harm,’ is an attempt to exclude significant habitat modification or degradation that actually kills or injures wildlife from the prohibition on “take.” This regulatory change, if finalized, would affect endangered species and threatened species on both federal and non-federal land, as well as in marine areas and the high seas subject to U.S. jurisdiction. This rule change is not consistent with the plain language of the ESA and the conservation standards that Congress enshrined in the law when it was enacted in 1973 and amended in 1982. The U.S. Supreme Court’s decision Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 400 (2024) does not support the regulatory proposal rescinding the definition of “harm” issued by the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively “the Services”). While the Services acknowledge in their proposal that the Loper Bright decision does not apply retroactively, they nevertheless rely on Loper Bright to justify their proposal to eliminate the long-standing regulatory definition of harm. However, the Supreme Court itself previously upheld the present definition of harm in Babbit v. Sweet Home Chapter of, Communities for a Greater Ore., 515 U.S. 687 (1995). While issued under the then-prevailing Chevron standard of deference, the Supreme Court majority’s detailed analysis of the ESA’s 1 This letter is submitted solely on their own behalf, not on behalf of any law school, university, or other entity. Institutional affiliations are provided solely for purposes of identification. plain language, its legislative history, and the statute’s later amendments make it clear that interpreting “harm” to include habitat impacts that actually kill or injure listed species is the best reading of section 9 of the ESA. Accordingly, the Services’ attempt to recast the meaning of this term along the lines of Justice Scalia’s dissent in Sweet Home is simply a backdoor effort to administratively reverse the Sweet Home decision by siding – decades later – with the minority of justices in the case. As held by the Court, the Act itself – not mere deference to agency interpretation – provides three clear reasons that “harm” includes habitat loss and modification that actually kills or injures wildlife. See 16 U.S.C. § 1532 (defining “take” to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”). First, the ordinary meaning of “harm” encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species. Unless “harm” includes indirect as well as direct injuries, the word has no meaning that does not duplicate that of other words that Section 9 uses to define “take.” And though the Services assert in their proposed rule that they seek to advance a definition of this term that is “centuries old,” the majority in Sweet Home noted that Congress “went out of its way” to add this term to the ESA’s definition of take to emphasize that “take” should be construed in the “broadest possible manner.” See Meese v. Keene, 481 U.S. 465, 484–485 (1987) (“It is axiomatic that the statutory definition of the term excludes unstated meanings of that term”). As the late-Justice Scalia himself has noted, “A definitional section of a statute or regulation governs the meaning of the defined terms as used in the statute or regulation.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012) at 233 (addressing the “Defined Term Rule”). Therefore, as the Court’s majority opinion recognized, the ESA incorporated an important modification to the historic notion of take of wildlife as merely reducing animals, by killing or capturing, to human control – a change that included adding “harm” to the common law definition of “take” to emphasize that, as used in the ESA, this term also encompasses actual death or injury to members of a protected species that results from habitat modification. Second, the ESA’s broad purpose of providing comprehensive protection for endangered and threatened species supports the current definition of harm. In Sweet Home, the majority noted the Court’s emphasis in TVA v. Hill, 437 U.S. 153 (1978) that the ESA is “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation,” a breadth reflected “in literally every section of the statute.” The majority in Sweet Home noted that the Court’s decision in its seminal ESA case also drew a link between harm and habitat modification, highlighting the Court’s emphasis in TVA v. Hill that the justices could “not understand how TVA intends to operate Tellico Dam without ‘harming’ the snail darter.” Finally, the ESA itself specifies that species are in peril due to “development untempered by adequate concern and conservation,” and provides that the statute’s purposes include to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” 16 U.S.C. § 1531(b). Reading “harm” to encompass habitat impacts that actually kill or injure listed species is thus the best reading of this statutory term in light of Congress’ purposes for enacting the ESA. Finally, the Court in Sweet Home also recognized that Congress amended the ESA in 1982 specifically in light of lawmakers’ recognition that Section 9’s take prohibition includes habitat protections. The current regulatory definition of harm was in place prior to when Congress amended the statute in 1982. Indeed, according to lawmakers, a driving force behind those amendments was the need to provide an avenue for authorizing activities that incidentally killed or injured protected species as a result of habitat modification. Congress thus added to the statute a means for the Services to authorize activities that “incidentally” kill or injure protected species. Through incidental take statements under Section 7(b)(4) and incidental take permits under Section 9(a)(1)(B), the Services can allow – with appropriate minimization and/or mitigation – death or injury to protected species that the statute would otherwise prohibit “if such taking is incidental to, and not for the purpose of, the carrying out of an otherwise lawful activity.” As the Court observed in Sweet Home, there would be nothing other than “absurd” reasons to include such incidental authorizations in the statute, absent an understanding by Congress that section 9’s take prohibition reaches incidental take caused by habitat impacts. The proposal to eliminate the current regulatory definition of harm thus seeks to do exactly what the majority warned against in Sweet Home, viewing the 1982 amendments to the ESA as having no “real and substantial effect.” Apart from the legal reasons for withdrawing the proposed elimination of the regulatory definition of harm, the Services’ proposal makes little sense from a policy standpoint. Habitat loss is a primary driver of extinction in the United States and underlies the listing over 1,250 species as threatened or endangered under the ESA.2 In 2023, the U.S. Fish and Wildlife Service declared 21 species officially extinct, including mammals, birds, mussels, and fish, with destroyed habitats identified as a key factor.3 The long-term economic consequences of habitat destruction include the loss of essential ecosystem services, decline in biodiversity, and increased vulnerability to climate change. The depletion of natural resources and the degradation of ecosystems also pose serious risks to diverse genetic resources that both underpin the well-being of most species and support a growing array of valuable products for humanity. At the same time, the provisions added to the ESA by Congress in 1982 allow most federal and non-federal actions alike to proceed even if they incidentally kill or injure listed species as a result of habitat impacts. The Services routinely issue incidental take statements and permits authorizing such actions and often work with non-federal permit applicants to provide technical and administrative assistance - and even sources of funding - for measures that mitigate the impacts of incidental take on protected species and thus allow for permits to issue. While Congress designed the ESA’s take prohibition to regulate broadly, lawmakers also crafted the law to provide for sensible allowances for projects to move forward even when they impact protected species and their habitat. This is a common-sense policy, and the best reading of the statute. We firmly believe that the proposed rule is contrary to law and inconsistent with the conservation of threatened and endangered species. We urge you to make use of your authority under the Appropriations Act to revoke the proposal to rescind the current and long-standing definition of harm. 2 Defenders of Wildlife (2023), Biodiversity in Crisis: Exploring Threats to America’s Most Imperiled Species, available at https://defenders-cci.org/files/5_Drivers_Report.pdf. 3 US Fish and Wildlife Service, 21 Species Delisted from the Endangered Species Act due to extinction, available at https://www.fws.gov/press-release/2023-10/21-species-delisted-endangered-species-act-due-extinction (last accessed May 2, 2025). Sincerely, Dan Rohlf Lewis & Clark Law School William Snape Assistant Dean and Professor American University, Washington College of Law Hope Babcock Georgetown University Law Center Susan Jane Brown Adjunct Professor of Law Lewis & Clark Law School Keith H. Hirokawa Distinguished Professor of Law Albany Law School Samantha Murray Ocean Law and Policy Faculty Executive Director, MAS MBC Program Scripps Institution of Oceanography, UCSD Michael C. Blumm Jeffrey Bain Faculty Scholar & Professor of Law Lewis and Clark Law School Craig Johnston Lewis and Clark Law School Heather Merfeld Pro Tem Instructor University of Oregon School of Law Denise Antolini Professor Emerita Richardson School of Law David M. Forman Professor of Law Co-Director, Environmental Law Program Affiliated Faculty, Ka Huli Ao Center for Excellence in Native Hawaiian Law & Pacific Asian Legal Studies Patrick Parenteau Professor of Law Emeritus and Senior Fellow for Climate Policy Vermont Law and Graduate School Sandra B. Zellmer Professor and Director of Natural Resources Clinics Co-Director of Environmental Law Programs ABIII School of Law | University of Montana Kathy Hessler Asst. Dean Animal Law Director, Animal Legal Education Initiative The George Washington University Law School Jess Beaulieu | Program Manager Animal Law Program University of Denver Sturm College of Law Bruce Wagman Animal Law Program Berkeley Law UC Law, San Francisco Stanford Law School Robert Keiter Wallace Stegner Professor of Law Director, Wallace Stegner Center of Land, Resources, and the environment S.J. Quinney College of Law David Favre Michigan State University College of Law Dara Lovitz, Esq. Adjunct Professor of Animal Law Temple University Villanova University Christian Freitag Associate Clinical Professor of Law Indiana University Maurer School of Law Matthew Liebman Professor and Chair of the Justice for Animals Program University of San Francisco School of Law Joan Schaffner Associate Professor of Law Faculty Co-Director, The Animal Legal Education Initiative George Washington University Law School Valery C. Behan Associate Professor of Practice Southern Illinois University Simmons Law School Delcianna J. Winders Associate Professor of Law Animal Law and Policy Institute Director Vermont Law and Graduate School David N. Cassuto Professor of Law & Kerman Family Scholar Director, Brazil-American Institute for Law & Environment (BAILE) Elisabeth Haub School of Law at Pace University expressed “vehement opposition” to the proposed rule in a letter to the administration.

The outpouring of public opposition to the proposed rule change is no surprise. Over 80 percent of Americans support the ESA. Most Americans know how important conserving habitats, lands, and waters are to our everyday lives and that protecting them should be a national priority. The stakes aren’t limited to wildlife — when ecosystems degrade, people suffer from threats to clean water, food security, and public health.

In response to the tens of thousands of Americans who are calling on the Trump administration to abandon its effort to eliminate habitat protections for vulnerable wildlife, 131 environmental and animal welfare groups from across the country issued the following statements:

“Tens of thousands of Americans have rejected the Trump administration’s callous effort to steal habitat away from our endangered species,” said Earthjustice attorney Kristen Boyles. “Trump’s proposed rule recklessly ignores common sense and common science. We’ll do all that we can to ensure vulnerable wildlife continue to have a livable habitat and a chance at survival.”

“Wildlife cannot survive without habitat — that’s not opinion, that’s biology,” said Josh Osher, public policy director for Western Watersheds Project. “This proposed rule is an industry-crafted blueprint for extinction, designed to let corporations destroy the very ground endangered species stand on, while pretending no harm is being done.”

“Loving wildlife is baked into our national heritage. Americans are very proud that our nation has prioritized conserving birds, fish and other wildlife that make our country so special,” said Ramona McGee, leader of the Southern Environmental Law Center’s Wildlife Program. “Here in the South, the stakes are much higher because of our world-renowned biodiversity, which is increasingly at risk from human-made factors like habitat destruction from unchecked, harmful development. It is unconscionable that our leaders are unnecessarily attempting to remove vital wildlife and habitat protections to placate extractive industries.”

“This nonstarter proposal ignores critical conservation provisions in a law that supports America’s most at-risk fish, wildlife, and plant populations, including over 600 species with habitat in our national parks,” said Christina Hazard, legislative director for the National Parks Conservation Association. “When food sources, nesting grounds or mating grounds are lost outside of national park boundaries, park wildlife will be lost as well.”

“Habitat integrity is among the most significant determinants of species’ survival; this rule change would jeopardize imperiled animals and entire ecosystems,” said Danielle Kessler, US Country Director at the International Fund for Animal Welfare (IFAW). “Effective, science-driven implementation of the Endangered Species Act–including habitat protection–benefits animals and people alike.”

“The Trump administration is attempting to dismantle and discredit one of America’s most popular and successful laws,” said Sierra Weaver, senior attorney at Defenders of Wildlife. “The current definition of ‘harm’ is a large part of what has made the ESA so effective at conserving imperiled species. This isn’t just redefining one word — it is gutting the heart of the Act. It will have cataclysmic consequences to the habitats, lands and waters that America’s wildlife relies upon, and goes against Congress’ intent for the law.”

“Extinction is forever,” says Katherine Miller, Country Director for FOUR PAWS USA. ” If we allow the ESA to be weakened and species’ habitats to be destroyed for profit, the consequences of these decisions will reverberate for generations. Science has shown that protecting a listed species’ habitat is vital to their survival and recovery. This is why we urge FWS and NMFS to withdraw their proposed rule and uphold America’s commitment to save endangered species, ensuring a livable planet for all of us.”

“Loss of habitat is the number one reason species become endangered,” said Susan Holmes, Executive Director of the Endangered Species Coalition. “Trump’s draconian proposal to end habitat protection for our most vulnerable wildlife rips out the heart of the Endangered Species Act and would put countless species on the path to extinction.”

“The Services’ proposal shows they are not serious about protecting imperiled species,” said Rebecca Riley, managing director for Food & Agriculture at NRDC (Natural Resources Defense Council). Habitat destruction is the number one threat to species’ survival, and yet they are coming up with weak excuses to claim Congress didn’t intend to address this existential threat.”

“Trump’s smash-and-grab habitat plan could welcome bulldozers and drilling rigs into the beautiful wild places that America’s most imperiled animals call home,” said Tara Zuardo, a senior campaigner at the Center for Biological Diversity. “The administration’s proposal seeks to rip a bloody hole in the Endangered Species Act, prioritizing industry profits over protecting habitat that’s crucial to preventing extinction. This is an illegal attempt to nullify a landmark wildlife law that’s supported by nearly every American who isn’t an oil executive, a timber baron or a Trump appointee.”

“Piping Plovers were set on a path to extinction due to millinery and hunting at the turn of the 19th century,” said Chris Allieri, founder and executive director, NYC Plover Project. “These are not the challenges the species is currently facing. The number one threat today is habitat loss, wherever they are found, including their wintering and breeding ranges. Without habitat protection, this species, and countless more, will go extinct.”