The Trump administration is proposing changes to the definition of “harm” under the Endangered Species Act. The proposed changes would prohibit actions that only directly relate to hurting or killing an animal. Historically, the word “harm” has been defined broadly to include habitat loss, which is a leading cause of extinction for endangered species. Noah Greenwald is the endangered species director for the Center for Biological Diversity. He joins us to share more on the broader impacts this change could have in Oregon and across the U.S.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. The Trump administration is proposing to change the definition of “harm” under the regulation of the Endangered Species Act. For decades now, the word has been defined broadly to include habitat loss, which is a leading cause of extinction for endangered species. The rule change, for which public comment just ended, would only prohibit actions that directly relate to hurting or killing individual animals.
Noah Greenwald is the endangered species director for the Center for Biological Diversity. He joins us now to talk about this. Welcome back to the show.
Noah Greenwald: Thanks, Dave.
Miller: What is the technical change that the administration is proposing to make?
Greenwald: Yeah, so under the Endangered Species Act, take of endangered species is prohibited by any person. “Person” is defined broadly to include governments, corporations, people. And “take” is defined as things like injuring, killing, harming and harassing. So what they propose is to change the definition of “harm.” Harm, almost since the beginning of the Endangered Species Act in the 1970s, has been defined to include habitat destruction – which makes sense, right? If you cut down the old growth forest where a spotted owl nests, you’re clearly harming it and that’s a prohibited take.
Miller: Can you help us understand the distinctions here in various kinds of law and then interpretations or rulemaking. So am I right that the more expansive definition of “harm” is not written into the language of the law, but has been codified since then?
Greenwald: That’s right. So “harm,” that word is in the law itself. The interpretation that said it applies to habitat destruction, that was in the regulations. So what the Trump administration has proposed to do is just to strip the definition altogether, arguing that the only kind of take there is, is you pull the trigger, you club the endangered species to death – direct, intentional acts.
Miller: Why is it important to keep the regulatory definition of “harm” that’s been in place, I guess, as you say, for decades now … Why is it important to keep that in place?
Greenwald: Well, there’s just really no way to save species from extinction without protecting the places that they live. And as you noted, habitat destruction is by far the biggest cause of extinction. So it’s just critical. If we want to address the extinction crisis that we face, we have to protect habitat for species.
Miller: We did ask the American Forest Resource Council, a trade association that represents the logging industry, to join us. They declined, but they did send us the comments that they submitted this week to the federal government in support of this rule change.
They wrote this: “As a proposed rule acknowledges, the term ‘harm’ is not further defined by the ESA, the Endangered Species Act. Instead, Fish and Wildlife Service and the National Marine Fisheries Service have each promulgated definitions of ‘harm’ to include ‘significant habitat modification or degradation, where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.’
“This broad ‘harm’ definition has had significant economic impacts in the West, with the services issuing incidental take statements, biological opinions for forest management projects and forest plans that impermissibly rely on habitat modification or degradation as a form of take.”
They went on to write this: “For the reasons explained below, the service’s definition of ‘harm’ should be rescinded because it does not match the single and best reading of the ESA statute, and there are no legitimate reliance interests that would warrant having this unlawful definition remain in place.”
What’s your response?
Greenwald: I couldn’t disagree more and I think they’re wrong. The “harm” definition was upheld by the Supreme Court. And one principle of statutory construction is that that words matter, that Congress put a word in a statute for a reason. So it already says to “kill,” it already says to “injure” in the definition of “take.” It also says “harm.” That word has to mean something. And clearly, when you destroy habitat for a species, you’re harming it. And that’s a big reason why the Supreme Court upheld the definition.
Miller: Well, I do want to then run another part of that letter from the American Forest Resource Council by you. And I should say that here they are echoing part of the justification of the administration itself.
They wrote this: “In 1995, the U.S. Supreme Court upheld the current expansive regulatory definition of ‘harm’ through invocation of the Chevron deference, which required judicial deference to an agency’s interpretation of ambiguous statutes.”
They went on to write this: “But as of 2024, Chevron deference is no longer good law. In Loper Bright Enterprises v. Raimondo, the Supreme Court held that its 1984 decision in Chevron was not only wrong but also ‘fundamentally misguided,’ and concluded that after 40 years of adjudications, Chevron deference has proven to be unworkable.”
“Therefore,” the logging industry group wrote, “the majority panel’s decision in Babbitt to uphold the service’s regulatory definition of ‘harm’ based on Chevron deference is called into question.”
A lot of words there, but I sense here they’re saying that because of last year’s huge overturning of this Chevron deference, that the 1995 upholding by the court of this definition of “harm,” it’s no longer valid. What’s your response to this specific argument?
Greenwald: Yeah, I think that’s wrong. I don’t think the Supreme Court relied on Chevron. It’s mentioned a couple times in the decision, but it’s not the primary part of their argument. It’s essentially what I said before, which is that “harm” is in the statute. It has to have meaning and there’s not really much other way to interpret it than, if you do something that harms a species, that’s prohibited. And clearly, habitat destruction counts as harming a species. So I think their reliance on Chevron in this case is just really misplaced.
Miller: What’s an example of activities that are prohibited now that you think would be allowed if this change does go through?
Greenwald: Well, I think, clearly the American Forest Resources Council thinks that logging habitat, say for the spotted owl, the marbled murrelet or salmon, that all of that would be no longer prohibited activity, and they wouldn’t need an incidental take permit under the Endangered Species Act to be able to do that. So I think that’s a pretty good example of cutting down our old growth forests, developing habitat that a species needs, any number of things.
I will say however, though, that even with the administration withdrawing the definition … let’s say that that withstands court scrutiny, which I think is pretty questionable. They didn’t give a different definition of “harm,” so it’s up to the courts. Will a court agree that cutting down old growth forests that spotted owls need is not “harm.” I think it’s an open question. So even with this definitional change, I think it’s questionable that timber companies will be able to do that.
Miller: Then help us understand what you think would happen legally if this rule change were to go through. I mean, what would the next steps be if this rule changes?
Greenwald: Well, when they finalize this rule – which I’m sure they will – we and other conservation groups, and maybe even states, will certainly challenge that. So that’ll be the next thing. Is their decision to remove the definition upheld? Then I think it’ll come down to when a timber company, let’s just say, goes to log old growth forest, that itself could get challenged as a violation of the Endangered Species Act. And then it’ll be up to the courts to say, well, is that “harm” or not? And from our perspective, it is “harm” and I think we’ll have a strong argument.
In some ways, I think the administration has gone too far. And what they’re saying, it just doesn’t make sense with the Endangered Species Act, with what the Endangered Species Act says. If somehow all of that went through and this is what ended up in the Endangered Species Act, no longer prohibited habitat destruction, that would be a disaster. That really would be a disaster for endangered species, for the natural world, for all of us.
Miller: Are there specific species that you’re most concerned about, as you imagine that future?
Greenwald: Well, it’s because the majority of endangered species are threatened by habitat destruction, it’s really all of them. But I, certainly here in the Northwest, would be very concerned for the spotted owl, for the marbled murrelet, for salmon. Yeah, I would be most concerned about those because they all really need habitat protection for their survival.
Miller: Just in the biggest picture, this legal debate right now, it does remind me of a series of conversations that we had recently when we were marking the 50th anniversary of this law. And correct me if I’m wrong, but it seems like there has been a decades-long conversation about the best legal structure for accomplishing what conservationists want to do, which is to think not about certain individual animals or even species, but to think much more holistically about habitats. Does this latest debate make you think about the utility of the Endangered Species Act in any different way, and make you long for a different kind of legal structure that would more explicitly and maybe more statutorily focus on habitat?
Greenwald: I’d have to say no, because I agree with the concept that we need to protect ecosystems and habitats. But when it comes down to measuring that, species provide an excellent metric. The spotted owl equates old growth forest. You protect the spotted owl, you protect hundreds of other species that depend on old growth forests – and that’s what we’re losing. We have less than 10% of what we had. And those forests not only protect species, they protect our climate, they protect our water quality. We need old growth forests and we need forests. So I think the Endangered Species Act, by putting a focus on species, does a really good job at getting at that issue.
Miller: Noah Greenwald, thanks very much.
Greenwald: Thanks, Dave, appreciate it.
Miller: Noah Greenwald is the endangered species director at the Center for Biological Diversity.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
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