US rule narrows definition of “harm” in Endangered Species Act

The Fish and Wildlife Service announced a rule that narrows the statutory definition of “harm” to cover only actions that directly and intentionally affect individual animals, excluding the destruction of habitat that could jeopardize a species’ survival. The change, set to take effect in September, overturns a decades-old interpretation that treated habitat loss as a form of “harm” under the Endangered Species Act (ESA).

Under the previous definition, “harm” included activities such as building on nesting beaches or logging forests that serve as critical habitat for listed species. The new rule means that projects like luxury-villa construction, wind-farm development, or road building would not automatically constitute a prohibited “take” unless the responsible party knowingly kills or injures the animals themselves.

“For years, federal agencies abused the ESA to obstruct lawful land use and burden American families and businesses,” said Doug Burgum, secretary of the Interior Department. “This action restores common sense, respects private property, provides much-needed certainty for landowners and follows the statute Congress actually passed.”

Legal experts note that the ESA still requires federal agencies to avoid destroying designated “critical habitat,” but the removal of habitat from the “harm” definition could undermine the incidental-take permits and Habitat Conservation Plans that have been used to mitigate impacts on endangered species. Several environmental organizations have filed lawsuits seeking to reinstate the former definition, arguing that the rule conflicts with the law’s intent and may be challenged in the Supreme Court.

The shift follows the Supreme Court’s 2024 decision to overturn the Chevron doctrine, which previously gave agencies broad authority to interpret ambiguous statutory language. With that deference removed, courts will now decide how “harm” is applied in future ESA cases.

“If this decision is allowed to stand, it eviscerates the statute on which imperiled species conservation has rested in this country since 1973,” said Jane Davenport, senior attorney at Defenders of Wildlife.

The outcome of the pending litigation could determine whether the ESA retains its capacity to protect species from indirect threats such as habitat loss.