In the heart of the Arkansas countryside, a storm is brewing over a proposal that could significantly alter the landscape of environmental protection in the United States. The U.S. Fish and Wildlife Service (FWS) has put forth a proposal to rescind the definition of “harm” in the Endangered Species Act (ESA), sparking a firestorm of public comments and legal anticipation.
The ESA, a landmark piece of legislation passed in 1973, is designed to protect endangered and threatened species and their habitats. The law prohibits the “take” of protected species, a term that includes actions like harassing, harming, pursuing, hunting, or killing. The definition of “harm” has been a critical component of this law since the 1970s, encompassing actions that significantly impair essential behaviors like breeding, feeding, or sheltering.
The FWS’s proposal, announced in April, argues that the current definition of “harm” is too broad and runs contrary to the best meaning of the term “take.” The agency suggests that the ESA itself provides a comprehensive definition of “take,” making further elaboration on “harm” unnecessary. This shift in interpretation has raised eyebrows and sparked concern among environmental groups and legal experts.
Brigit Rollins, a staff attorney for the National Agricultural Law Center, notes that the proposal could make enforcing the ESA much harder. “Without ‘harm’ being defined to include destruction of habitat, the concern is that it will essentially defang the ESA,” she said. The proposal has indeed drawn a massive response, with over 375,000 public comments submitted during the comment period.
The legal community is already gearing up for what could be a significant test of agency reach following last year’s Supreme Court decision on the Chevron doctrine. This doctrine, which was overturned in June 2024, previously guided courts to defer to federal agencies on rule-making, assuming the agencies were subject matter experts and the rules were reasonable. The FWS’s proposal may be a way to test the judiciary’s willingness to revisit these issues.
Rollins expects lawsuits to follow swiftly once the proposal is finalized. “There’s probably going to be an immediate injunction and then we’ll be off to the races,” she said. The Ninth Circuit, which includes states like California and Oregon, is a likely venue for these legal battles.
The ESA has long held a special place in American environmental law, passed with overwhelming support by Congress and signed into law by President Richard Nixon. The act is meant to protect listed species and provide a means for their recovery. The FWS’s proposal, however, could significantly alter the act’s implementation and impact.
As the dust settles on the public comment period, all eyes are on the FWS and the courts. The outcome of this debate could reshape the future of endangered species protection in the United States, affecting everything from agricultural practices to wildlife conservation efforts. The stage is set for a legal and environmental showdown that could redefine the boundaries of the ESA and the Chevron doctrine’s legacy.