What matters to me today is: What’s the Harm in Undefining “Harm”?
Sometimes the biggest legal battles turn on a single word.
The Trump administration is rescinding the U.S. Fish and Wildlife Service’s regulatory definition of “harm” under the Endangered Species Act, eliminating the decades-old interpretation that treated significant habitat modification resulting in injury or death to protected species as a prohibited “take.” Rather than replacing the definition, the Services embrace Justice Scalia’s dissent in Babbitt v. Sweet Home, concluding Congress never intended “harm” to reach habitat modification alone.
Environmental groups have already promised another court challenge, arguing Congress always intended “harm” to include habitat destruction that injures protected species. The issue appears headed once again toward the Supreme Court.
California has already anticipated this fight. Through AB 1319—about which I’ve previously written—the Legislature created an expedited pathway for potentially more than 150 species to receive protection under the California Endangered Species Act while suspending many of the traditional opportunities for due process and public participation in the listing process.
The unfortunate reality is that this debate is now destined to be decided through politics and lawyerly parsing of statutory language rather than thoughtful policymaking. After more than 50 years under the ESA, we know far more about what works. Broad-scale Habitat Conservation Plans have shown that responsible landowners can balance housing, economic development, and species conservation. We should expect—and demand—that our elected officials build policy on that experience, not endless litigation over a single word.
The Final Rule rescinding “harm” is on its way to the Federal Register for official publication.
That’s what matters to me today in 250 words or less. What matters to you? I’d really like to know.