ESA's ‘Harm’: What’s In a Word?

by Robert Chaney

The Random House Dictionary definition of “harm” is 15 words long. The U.S. Fish and Wildlife Service proposal to redefine “harm” in the Endangered Species Act runs 10 pages.

The fate of thousands of species and millions of acres of habitat hang on a single word. The public comment debate over what that word means comes to a close on May 19.

FWS wants to stop using “harm” in the list of actions people can’t do to threatened or endangered animals and plants protected by the 1973 law. The move is part of President Donald Trump’s executive order “Unleashing Prosperity Through Deregulation,” which calls for the elimination of 10 old federal regulations for every new regulation issued.

“The existing regulatory definition of ‘harm,’ which includes habitat modification, runs contrary to the best meaning of the statutory term ‘take,’” FWS declares in its Federal Register posting. “We are undertaking this change to adhere to the single, best meaning of the ESA.”

Critics of the proposal say that word change would gut the ESA. The law’s most powerful tool, they argue, is its authority to regulate the use of places a plant or animal needs to survive. They point to Congress’ own words in the law’s preamble: “Man can threaten the existence of species of plants and animals in any of a number of ways, by excessive use, by unrestricted trade, by pollution or by other destruction of their habitat or range. The most significant of those has proven also to be the most difficult to control: the destruction of critical habitat.”

The Fish and Wildlife Service did not respond to requests for comment. The proposal has not generated much discussion among property rights or industry groups either.

But it has drawn opposition from environmental organizations. Jeff Ruch of Public Employees for Environmental Responsibility said the proposal went far beyond Trump’s first-term attempts at deregulation.

“This narrow definition has the potential to unleash bulldozers to open every square inch of public land to drilling, mining and clear-cutting,” Ruch said. “It is a key plank in the Trump vision of a new American prosperity spawned by unlimited energy and mineral development in which extraction trumps conservation.”

Critical habitat has been a decisive factor in many public land use disputes. In April, the Alliance for the Wild Rockies, Council on Wildlife and Fish, and Native Ecosystems Council sued the U.S. Forest Service “to protect habitat for three rare wildlife species — grizzly bears, lynx and sage grouse — in Montana’s Gravelly Mountains, which is an area that provides a critical wildlife corridor connecting the Yellowstone area to other mountain ranges in Montana. The challenged government action … allows destructive logging, road-building, and burning activities across thousands of acres of public lands in this key wildlife corridor zone in the Beaverhead-Deerlodge National Forest.”

In American jurisprudence, the legal definition of a single word often determines how an entire law works. Telling the Forest Service it “may” do something means the agency has discretionary wiggle room. Saying it “shall” do something is a direct order: no wiggling allowed.

And the meanings build on one another. The Endangered Species Act has a whole Jenga tower of definitions explaining how Congress wants federal agencies to use the ESA. At its core, the ESA prohibits the “take” of endangered species. And “take” means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

Of those 10 verbs, nine directly affect the animal or plant under protection. But “harm” is different. FWS regulations define it to mean “an act [that] 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.”

The FWS Federal Register notice reaches back to a 1995 U.S. Supreme Court dissenting opinion by Justice Antonin Scalia, who wrote that the word “take” “was as old as the law itself.” In Scalia’s reading, “To ‘take,’ when applied to wild animals, means to reduce those animals, by killing or capturing, to human control.” In contrast, Scalia wrote that “harm” only “indirectly or accidentally” caused injury. 

Scalia was on the losing side in 1995. But note the word “may” in that FWS regulation above, and the fact that it is a regulation made by an agency. That’s not what judges call the “black-letter law” written by Congress.

The Federal Register notice then jumps ahead 30 years to the Supreme Court’s 2024 Loper Bright decision, which overturned a long-standing precedent known as Chevron deference. That doctrine gave federal agencies the authority to flesh out the meaning of laws when Congress was unclear or incomplete. The new ruling says agencies may not make regulations unless they “match the single, best meaning of the statute.”

“We have concluded that our existing regulations … do not match the single, best meaning of the statute,” FWS wrote. “As Justice Scalia's dissent … explains, the regulations’ interpretation of the statutory language … did not properly account for over a thousand years of history, and is inconsistent with the structure of the ESA. Nor is any replacement definition needed.”

Professor Sandra Zellmer directs the Natural Resource Clinics at the University of Montana Blewett School of Law. She noted the 6-3 majority opinion of that 1995 case made an in-depth analysis of the ESA’s plain language, including the definition of the word “harm.”

“It held that interpreting ‘harm’ to include habitat degradation that actually kills or injures listed species is the appropriate interpretation of ESA section 9,” Zellmer wrote in an email to Mountain Journal. “In fact, it recognized that to interpret the term ‘harm’ in any other way would deprive it of independent meaning and, in effect, render the term superfluous, which would violate a foundational rule of statutory construction.”

The International Union for the Conservation of Nature maintains a global list of threatened species and the challenges they face. Habitat destruction is the primary threat to 88 percent of those species, Zellmer said.

“This is why the ESA expressly states: ‘The purposes of this chapter are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, and to provide a program for the conservation of such endangered species and threatened species,’” Zellmer wrote. “Notably, of the five factors identified in the statute for listing species, habitat destruction comes first (‘the present or threatened destruction, modification, or curtailment of its habitat or range’).”

A coalition of 22 groups posted their combined response to the Federal Register’s public comment portal on May 7, stating FWS is “not entitled to unbridled deference nor their unique interpretation of the plain language of the ESA as a basis for unraveling decades of findings, rulings and practices that have prevented species from becoming extinct … We urge the Services to remove this proposal.”