Rolling back the ESA's regulatory definition of the word "harm"

See:

https://biologicaldiversity.org/w/news/press-releases/trump-administration-kills-protections-for-endangered-wildlife-habitat-2026-07-10/

Comments:

The word "harm" was not specifically defined in the Endangered Species Act but was used in defining the word "take" to  mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect."

It became settled law that the word "harm" in the context of the Endangered Species Act regulations (again with reference to the "take" provisions) included habitat modification and destruction.  Federal regulations have (until now) defined "harm" to include "significant habitat modification or degradation where it actually kills or injures wildlife."    

But no doubt as a result of Trump administration goals to open up areas for logging and mining, the US Fish & Wildlife Service has now, some 30 years later, decided to follow a minority dissenting opinion made in 1995 by conservative Justice Scalia (who was joined by Thomas and one other), that the word "harm" does not in fact mean negatively impacting listed species habitats.  

The Service claims that this change is unrelated to critical habitat provisions afforded under the Act and that existing critical habitat designations will not change (yet many listed species do not have critical habitat designations and the protection those provide do not in any event exclude development and degradation of those habitats.). 

Some 358,000 comments were submitted in response to a 30 day only comment period that  was deemed to be a sufficient amount of time for the public to be notified and make those responses.

Now the word "harm" has no specific regulatory meaning.   Rescinding the regulatory definition of “harm” under the Endangered Species Act that has just been published involves some highly contorted logic.  And, exactly what this means when it comes to plants is not  yet clear.

EarthJustice is reportedly planning to fight this change in court since there is no legal or scientific basis to support the position that the Service has now taken.   Given now the even more "conservative" nature of the Supreme Court, chances of success are probably low.  

Congressional action ultimately may be required.

See also:  https://www.theguardian.com/us-news/2026/jul/10/epa-rollback-endangered-habitats-logging-mining