Endangered Species Act faces its biggest legal shift in decades

The Endangered Species Act (ESA), long regarded as a cornerstone of U.S. environmental policy, is facing a dramatic reinterpretation. Federal agencies have proposed the removal of habitat changes from the definition of “harm” to endangered and threatened species.

This move, conservation groups warn, could accelerate extinctions by allowing logging, mining, construction, and other development to proceed unimpeded in sensitive areas.

Wildlife protections face a major shift

Since the ESA was enacted in 1973, regulators and courts have treated the term “harm” broadly. Under the existing framework, an activity that destroys or degrades the habitat of a listed species can be deemed unlawful even if the action is not intended to kill or harass individual animals.

The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) now argue in their newly released proposal that habitat loss should not count as “harm” because it differs from the direct targeting of wildlife – referred to in the statute as “take.”

The agencies’ notice, recently made public and slated for official publication in the Federal Register, states that the act’s prohibition on “take” was never meant to cover changes to the landscape. Agency lawyers argue the ESA uses other tools, like critical habitat designations, to protect spaces species depend on.

If that interpretation is finalized, private landowners and industry operators could no longer be held liable under the ESA for clearing forests, draining wetlands, or reshaping shorelines so long as they claim no intention to injure protected animals.

Changes could have dire consequences

The announcement drew swift rebuke from environmental organizations. Noah Greenwald, who directs endangered species work at the Center for Biological Diversity, noted that habitat destruction is the biggest cause of extinction.

Greenwald argued that the proposed rule “cuts the heart out of the Endangered Species Act.” It does this by removing a key safeguard that has blocked or modified countless development projects over the past half‑century.

“If (you) say harm doesn’t mean significant habitat degradation or modification, then it really leaves endangered species out in the cold.”

The rule threatens decades of progress

Greenwald also pointed to two high‑profile examples that currently depend on habitat protections: the northern spotted owl in the Pacific Northwest’s old‑growth forests and the Florida panther in the state’s shrinking swamplands.

Greenwald warned the new policy lets loggers and developers act freely if they claim any wildlife harm was unintentional.

Earthjustice attorney Drew Caputo echoed those concerns. He said the rule “threatens a half‑century of progress in protecting and restoring endangered species,” listing bald eagles, gray wolves, Florida manatees, and humpback whales as beneficiaries of the existing interpretation.

“Destroying a forest, beach, river, or wetland that a species relies on for survival constitutes harm to that species,” he said, citing decades of legal precedent.

Supreme Court’s role in the ESA

The current definition of “harm” has already survived judicial scrutiny at the highest level. In the 1995 case Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, the U.S. Supreme Court upheld the government’s inclusion of habitat modification within the scope of “take.” That decision has guided agency practice ever since.

Patrick Parenteau, an emeritus professor at the Vermont Law and Graduate School who has argued endangered species cases, noted that reversing course now raises questions of legal consistency.

Opponents may argue the agencies shouldn’t abandon a Supreme Court-backed definition without strong new evidence if they finalize the Endangered Species Act rule.

Because the existing standard has been in place for decades, landowners and federal planners have used it to conserve “many, many millions of acres of land,” according to Parenteau.

Removing habitat from the definition of “harm” could upend scores of conservation plans negotiated between agencies and private stakeholders.

Endangered species in Hawaii

Hawaii may feel the impacts more acutely than anywhere else. Although the islands cover less than one percent of U.S. land area, they host roughly 40 percent of all species listed under the ESA.

Maxx Philipps, Hawaii and Pacific Islands director for the Center for Biological Diversity, warned that weakening habitat safeguards will accelerate Hawaii’s extinction crisis.

Philipps also said it will destroy the biological and cultural heritage of the islands, highlighting one example, tiny native bees that pollinate coastal dune plants.

Development has already fragmented the few remaining stretches of shoreline. If development proceeds without habitat review, she said, bees and other shoreline species – including green sea turtles – could see their last refuges disappear.

“Habitat is life, right?” she asked. “And without it, there is no recovery and without recovery, there is only extinction.”

Lawsuits begin, agencies remain silent

The Department of the Interior, which oversees FWS, declined to comment, referring inquiries to the agency.

Officials also noted that the proposal will soon appear in the Federal Register, opening a 30‑day window for public input.

Environmental advocates are already preparing litigation. Caputo said groups like Earthjustice will challenge the rule if it becomes final, arguing that the administration’s narrow interpretation conflicts with the statute’s language and the Supreme Court’s guidance.

Removing habitat protections

Supporters of the rule change – including industry associations representing forestry, mining, and farming – contend that private landowners have shouldered disproportionate burdens under the ESA. They argue penalizing habitat changes hurts development and may prompt landowners to clear areas before species are discovered.

Critics counter that streamlined approvals come at the expense of irreplaceable ecosystems and the species dependent on them.

The debate underscores a broader tension within environmental law: balancing economic opportunity against the preservation of biodiversity. Though Congress could revise the ESA’s habitat rules, past efforts have failed under both Republican and Democratic control.

As a result, the practical meaning of “harm” often hinges on regulatory interpretation and judicial review.

Future of the Endangered Species Act

If the proposed rule to the Endangered Species Act takes effect after the comment period, it would mark one of the most significant shifts in ESA enforcement in decades.

Conservation organizations predict a surge of lawsuits aimed at reinstating the broader definition of “harm.” They also worry about immediate on‑the‑ground consequences as businesses test the new limits.

For researchers and advocates vested in species recovery, the stakes could not be higher: without habitat to return to, plants and animals already on the brink may have no path back from the edge.

As Philipps put it, preserving habitat is the foundation for recovery. The ESA’s future hinges on public comments, agency decisions, and expected legal challenges in the months ahead.

—–

Like what you read? Subscribe to our newsletter for engaging articles, exclusive content, and the latest updates. 

Check us out on EarthSnap, a free app brought to you by Eric Ralls and Earth.com.

—–