May 19, 2025
Federal eRulemaking Portal
www.regulations.gov
Docket: FWS-HQ-ES-2025-0034
Re: Comments Regarding Rescinding the Definition of “Harm” Under the Endangered Species Act: 90 Fed. Reg. 16102 (April 17, 2025)
Dear Secretary Burgum and Secretary Lutnick:
These comments are filed by Earthjustice on behalf of the sixty-six undersigned organizations. The undersigned organizations and their members work to protect and preserve the environment, with particular attention to the preservation of threatened and endangered species and the habitat they need to survive and recover. We submit these comments to oppose the proposal by the U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) (collectively “the Services”) to rescind the long-standing regulatory interpretation of the term “harm” in the Endangered Species Act’s (“ESA” or “the Act”) definition of prohibited take (the “Proposed Rule”)1See Endangered and Threatened Wildlife and Plants; Rescinding the Definition of “Harm” Under the Endangered Species Act, 90 Fed. Reg. 16102 (April 17, 2025)..
SUMMARY OF CONCERNS
The ESA represents our nation’s commitment to preventing the extinction of threatened and endangered species and protecting the ecosystems they need to survive and recover. A core protection in the ESA is the prohibition on the “take” of endangered species, which the Act defines to include “harm.”216 U.S.C. § 1532(19). For fifty years, federal regulations have recognized that “harm” in this context must include a prohibition on killing or injuring endangered species through significant habitat modification or degradation, such as by destroying the resources that members of endangered species need for feeding, breeding, or sheltering3 FWS’s definition of “harm” is found at 50 C.F.R. § 17.3; NMFS’s is found at 50 C.F.R. § 222.102.. This definition appropriately reflects that habitat protection was a paramount concern when Congress enacted the ESA, as demonstrated in both the legislative history and the text of the statute itself.
The Services’ Proposed Rule to rescind the regulatory definition of “harm” lacks any basis in science or law. As the biodiversity crisis continues to accelerate, human-caused habitat destruction drives species toward extinction more than any other single factor and threatens to undermine the goals embodied in the ESA. The statute prohibits takings caused by habitat destruction that kills or injures wildlife, and any contrary approach would shred the safety net that the ESA guarantees for vulnerable species. While the Services cannot administratively repeal elements of the statute, the Proposed Rule signals that the Services will not lawfully implement the ESA and invites confusion and noncompliance by the regulated community.
In these comments, we first summarize the extensive science linking habitat destruction to the injury or death of members of protected species. This recent research only deepens the concerns that motivated Congress to enact the ESA; it also reinforces the need for the Services’ long-standing definition of “harm.” We then describe in more detail just a few of the Services’ many scientific determinations that habitat modification or degradation imperils threatened and endangered species. In short, there is no scientific justification for rescinding the “harm” definition; years of scientific evidence proves that significant habitat modification or degradation actually kills or injures fish and wildlife.
Turning to the scant justifications given for the Proposed Rule, we explain why eliminating the “harm” definition would contravene the ESA by conflicting with the plain text of the statute, its legislative history, and a landmark U.S. Supreme Court opinion that resoundingly upheld the current definition of “harm.” The Proposed Rule would also upend thirty years’ worth of judicial precedent consistent with that ruling. Nothing in the Supreme Court’s recent opinion in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), compels or supports the Services’ proposed action here.
Finally, if the Services go ahead with this proposal, they must analyze the likely impacts of the Proposed Rule under the National Environmental Policy Act and engage in consultation under the ESA. All of the scientific and legal evidence in this letter and the attachments is centrally relevant to the proposed rescission and must be thoroughly accounted for by the Services.
For the reasons outlined in this letter, and for the species that the ESA protects from extinction, we urge you to withdraw the Proposed Rule rescinding the long-standing regulatory definition of “harm.”
Click here to read the full letter.