The Trump administration has decided that destroying the habitat of endangered species is not harmful.
Think about that.
Habitat loss is the No. 1 reason species become endangered. Red-cockaded woodpeckers need mature long-leaf pine forests to reproduce. Endangered western monarch butterflies depend on pesticide-free milkweed for food. Pacific salmon must have clean, cool rivers for spawning. If coastal water becomes too polluted, manatees will starve.
Yet, on July 14, 2026, the U.S. Department of Interior formally rescinded the so-called harm rule under the Endangered Species Act, removing language that has protected species from losing millions of acres of habitat.
As a law professor who has followed these issues for over five decades and litigated early cases under the Endangered Species Act, I believe this effort to gut the nation’s premier wildlife conservation law is unjustified and unlawful.
I see several reasons the rule change is not likely to survive the legal challenges that have already begun.
Enacted in 1973 at the behest of President Richard Nixon and passed overwhelmingly by both houses of Congress, the Endangered Species Act’s stated purpose is to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.”
The U.S. Supreme Court in 1978 described the act’s role more plainly: to “halt and reverse the trend of species extinctions whatever the cost.”
The act requires federal agencies to designate habitat for species as critical if it is deemed “essential to the conservation and recovery” of that species. Once habitat is designated, federal agencies are required to “insure” that their actions are not likely to result in the “destruction or adverse modification” of such habitat. All of this is spelled out in the text of the law itself.
The Endangered Species Act prohibits the unauthorized “take” of protected species. It broadly defines “take” to include deliberate actions such as hunting and trapping, but also those that “harm or harass” individual members of the protected species.
The prohibition applies to everyone: individuals, corporations, states and municipalities, tribes and others. The act is by far the most important federal law protecting habitat on nonfederal land.
“Take” is a term of art in wildlife law with deep roots in Anglo-American jurisprudence. It has always included requirements to conserve habitat. The earliest wildlife laws in England also required landowners to retain adequate forage and cover for wildlife, in addition to regulating hunting and fishing.
In 1975, shortly after Congress passed the Endangered Species Act, the U.S. Department of Interior created the rule defining harm to include “acts or omissions that actually injures or kills wildlife,” including habitat degradation that “significantly disrupts essential behavioral patterns, which include, but are not limited to, breeding, feeding or sheltering.”
The rule was revised somewhat in 1981 to clarify that harm “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.”
In 1981, the 9th Circuit Court of Appeals held that habitat destruction qualifies as an unlawful take under the Endangered Species Act, ruling in a case brought on behalf of an endangered bird called the palila.
Congress reacted to that ruling by amending the act to create the incidental take program. I testified in favor of this provision during the hearings.
The incidental take program provides a way to reduce conflicts between protected species and commercial development by authorizing only those takes that meet strict rules to minimize and mitigate the impact on the species in question. Over the years, hundreds of incidental take permits have been issued covering over 47 million acres of habitat.
If Congress didn’t believe habitat destruction and degradation constitute “harm” under the statute, why would it require permits and plans to offset habitat loss?
This will factor into the litigation to come challenging the move to rescind the harm rule.
The controversy over the harm rule reached the Supreme Court in 1995 in a case brought by the timber industry in Oregon. In Sweet Home Communities for a Greater Oregon v. Babbitt, the court upheld the harm rule by a vote of 6-3.
Justice John Paul Stevens wrote the court’s majority opinion. He cited multiple reasons for upholding the rule as a “reasonable interpretation” of congressional intent under the then-prevailing Chevron Doctrine:
First, Stevens wrote that the ordinary meaning of “harm” naturally encompasses habitat modification that results in actual injury or death to members of an endangered or threatened species.
Second, under relevant Supreme Court precedent, every word in a statute must be given effect. Thus the word “harm” must encompass indirect as well as direct injuries or it would have no meaning that does not duplicate the other words in the definition of “take.”
Third, the fact that Congress amended the act to authorize incidental take permits with habitat conservation plans strongly suggests that Congress intended for the law to prohibit both direct and indirect causes of death or injury.
Justice Antonin Scalia dissented in that case, arguing that the word “harm” applies only to an action “directed immediately and intentionally against a particular animal.” Or as he put it, “A strikes B.”