In the 6-3 opinion written by Justice Stevens, the Supreme Court held that the secretary’s inclusion of habitat modification and degradation in “harm” was reasonable on several grounds. Namely, the majority pointed out that “harm,” under its ordinary meaning, is not limited to direct-contact actions that kill or injure an endangered species. They also harkened back to their prior statement that the intent of the ESA is to provide broad protection to “halt and reverse the trend toward species extinction, whatever the cost.” Lastly, the majority noted that the congressional grant of authority to the secretary to issue section 10 permits for incidental takings would not be logical if only direct action counted as a “harm” and thus taking. Justice O’Connor’s concurrence illustrated the practical cabining of habitat destruction and degradation by proximate causation and foreseeability: a given habitat modification would not qualify if the effects were too remote, but to completely destroy the last of an endangered species’ breeding ground is to proximately cause injury to identifiable animals protected by the ESA and cause their extinction via impairment of their essential reproductive behavior.
Justice Scalia’s dissent in the case, now cited in agencies’ notice of proposed rulemaking, stated that this construction of “harm” imposed an unfair financial burden to the extent that the regulation was, even under Chevron deference, an overreach. Scalia’s dissent focused on the concept of “take” to mean reducing an animal to human control through killing, capturing, and the associated activities, done directly and intentionally to particular animals, not to populations; the regulation, he argued, included unlawful injury to populations. To support this narrow interpretation, he invoked the concept of noscitur a sociis—stating that all the other surrounding terms in the list of actions that constitute a “taking” imply direct action, and thus “harm” should be similarly construed. Justice Scalia further pointed to the failure of the regulation to consider that modifications could have unintended or unforeseen consequences and the idea that the inclusion of habitat modification or degradation would functionally and unfairly turn private property into de facto wildlife preserves.
The notice of proposed rulemaking calls direct attention to the new agency deference atmosphere—that while in Sweet Home the court upheld the Secretary’s interpretation of “harm” under Chevron deference, now that Loper Bright Enterprises v. Raimondo 603 U.S. 369 (2024) has overruled the long-standing deference doctrine, the analytical framework has changed. The rulemaking notice states that the question is no longer whether the agency’s interpretation is reasonable but is now “whether the agency’s regulation match[es] the single, best meaning of the statute.” The notice justifies recission of the “legally incorrect definition of harm” on the basis that the Sweet Home definition including habitat modification and degradation is not in alignment with the best meaning of the statute, and further, that any definition of “harm” in the context of ESA takings was itself wholly unnecessary. Notably, Loper Bright also stated that it falls within the purview of the courts to determine the best reading rather than just a permissible one, and that the best reading is that which the courts would have reached if no agency were involved. Nevertheless, the agencies are now acting of their own accord to conclude that the best reading is one that runs contrary to the Court. The notice asks for public comment regarding reliance interests on the regulation, referencing competing viewpoints of those who may claim environmental and aesthetic reliance versus property owners and other entities affected by the ESA.
With regard to National Environmental Policy Act (NEPA) compliance, the notice claims that the proposed rule, deregulatory in nature, is a nondiscretionary action wherein the agency does not have authority to take environmental factors into consideration or, alternatively, that it falls within categorical exclusions for both the Department of Interior and NOAA, as have other prior rulemakings regarding regulatory definitions. The notice concludes its discussion by stating that the promulgation of rules is not itself subject to any consultation requirements under the ESA; the action is essential and administrative in nature. The agencies assert to be acting in accordance with historical practice and in their “unique statutory role as administrators” of the ESA, both by interpreting the standards of the Act and promulgating revisions to the regulations stemming from that interpretation.
This proposed rule has serious implications in the environmental and forest law context. Today, habitat modification and destruction is the primary reason that species are being listed as threatened or endangered, according to the Environmental Protection Agency. Habitat has been at the heart of listed species and forest litigation—one need only to look at the history of the northern spotted owl and the millions of acres of its old growth forest habitat that have been protected from logging for proof of impact. Habitat conservation is a vital function of the ESA in protecting species, not only through designation of critical habitat but also through minimization of take in section 7 consultations and minimization and mitigation required for section 10 incidental take permits. While the rulemaking notice states that it will not be retroactively affect existing permits, recission of the definition of “harm” would largely strip the ESA of its power to protect habitat in the context of takings in the future. Further, even where critical habitat has been designated, it is not immune to future exclusion from that protection: under the first Trump administration, FWS revised their designation of critical habitat for the northern spotted owl, eliminating 3.4 million acres in the heart of timber country in the Pacific Northwest.
If the proposed rulemaking is finalized, the only actions prohibited as “takings” would comport with Justice Scalia’s 30-year-old dissent: ones that involve directly hurting or killing the animals themselves, which can be extremely difficult for agencies to monitor. Habitat modification and degradation harms and take, by contrast, are common, easier for agencies to regulate, and often serve as the trigger for agencies or business entities whose actions may affect ESA species habitat to initiate section 7 consultation and seek the appropriate permits. When viewed in conjunction with the current Trump administration’s executive orders regarding timber that aim to ramp up domestic logging and streamline the permitting process (14223, 14225,) and an executive order requiring the Endangered Species Committee to convene more often than it historically has, (14156), the outlook for endangered or threatened species’ forest habitat feels grim. Priorities seem to be ever shifting in favor of industry, with the administration reducing regulatory hurdles while simultaneously aiming to weaken environmental protections.
While future administrations could potentially reinstate the “harm” definition, regulatory instability only breeds litigation and administrative headache, and most importantly—once the forest is logged and the habitat is gone, the harm is done, and a new administration can’t simply put it back.
