Unpacking The Trump Administration’s Rescission Of The Harm Definition (Podcast)

In this episode of Digging Into Land Use Law, Brooke Marcus and Paul Weiland discuss the Trump administration’s rescission of the regulatory definition of “harm” under the Endangered Species Act (ESA), which impacts how habitat modifications are viewed in relation to the prohibited “take” of protected species.

Brooke and Paul explain the historical context of the definition through the Supreme Court’s Sweet Homedecision and its reliance on Chevron deference, noting that the recent Loper Bright ruling, which overruled Chevron, introduces uncertainty by shifting interpretive authority from agencies to courts. They also discuss the continued habitat protections under ESA Section 7, potential future regulatory and legislative responses, and how agencies, courts and Congress might redefine habitat and species protections in the future.

0:00:00.4 Brooke Marcus: The Endangered Species Act is widely regarded as one of the nation's most powerful environmental laws. A key reason is that the act broadly prohibits actions that, "take" species protected under the law. The act defines the word take to include actions such as pursue, capture, kill, and also includes the term harm. The act itself, Congress declined to separately define the word harm. But the Fish and Wildlife Service and the National Marine Fisheries Service, the two agencies that administer the Endangered Species Act, did define harm decades ago through regulation. And since then, courts, including the Supreme Court, have been refining the scope of the definition as they address allegations of harm of endangered species in a wide range of circumstances. Recently, and the reason we're here to talk to you today, the Trump administration decided to rescind that regulatory definition of harm. This action has caused quite a stir in the conservation community. Today we will explore why this action is causing so much controversy, as well as its potential implications.

[music]

0:01:07.3 Speaker 2: Welcome to Digging Into Land Use Law, Nossaman's podcast covering the development of all things in, on, or above the ground.

0:01:23.9 BM: Hi all. Thanks for joining us for another episode of Digging Into Land Use Law. Today you've got Paul Weiland in Nossaman's Orange County office and myself, Brooke Marcus, in Nossaman's Austin office, two members of the environmental and land use group. We're gonna talk to you about a major development in the Endangered Species Act that happened this past week. So before we get into the implications of the rescission of the harm definition, I want to set the stage a bit for those listeners that may not be as familiar. The crux of the Endangered Species Act is this ESA Section 9 Take Prohibition, which prohibits unauthorized take of endangered wildlife. The reason that you want to abide by the take prohibition is that unauthorized take can result in civil and criminal penalties and increased exposure to a citizen suit. As we already mentioned, the text of the statute to include actions such as pursue, capture, kill, and also harm. When the services defined harm through regulation, the piece that folks are focusing on is really the harm definition, which extends to habitat modification. And so when defining the term harm, the agencies said habitat modification can result in unauthorized take where such take results in significant impairment of breeding, sheltering, or feeding, such that death or injury to an individual member of the species occurs.

0:02:45.2 BM: Now, this definition was challenged and made it all the way up to the Supreme Court in the seminal Sweet Home case. In that case, the Supreme Court relied significantly on Chevron, and the plurality opinion emphasized that not all habitat modification equals take, but habitat modification meeting this significant impairment threshold that I just mentioned can rise to the level of take. And for nearly 50 years, this definition has been applied by the agency and continually refined by the courts. I'll say whether or not habitat modification rises to the level of take at a particular project has been the multimillion-dollar question and often the focal point of discussions between the regulated community and the agencies. But notably in Sweet Home, Scalia wrote a dissent which took a much narrower view of the scope of take, which brings us to where we are today. And Paul, I don't know if you wanted to elaborate on Scalia's position now. I know it'll come up when we're talking about the approach that they've taken in the defense of why the definition of harm was rescinded.

0:03:47.5 Paul Weiland: Yeah, I could talk a little bit about the Sweet Home decision itself. So the issue in the case, as Brooke's already described, was whether or not the harm definition that was set forth in a rule that was adopted by the Fish and Wildlife Service was permissible, essentially. So that was subject to a challenge. The trial court upheld the definition, relying on the Chevron doctrine, which provided a process to... A two-step process to evaluate agency interpretation of statutes that agencies administer, and provided that so long as the statute is ambiguous and the agency interpretation is permissible, the agency interpretation should be upheld. The D.C. Circuit actually reversed the lower court finding and struck down the decision on the grounds that it was an impermissible interpretation of the term in the statute. And so it was in that context that the case went up to the Supreme Court, and we had a fractured Supreme Court with Justice O'Connor issuing a lone concurrence, three justices led by Justice Scalia, joined by Chief Justice Rehnquist and Thomas, dissenting, and the remainder of the court in the majority and upholding the interpretation put forward by the Fish and Wildlife Service, relying on the Chevron doctrine that, one, the statute was ambiguous, and then going to Chevron step two and interpreting the Fish and Wildlife Service's interpretation as a permissible interpretation of the statute.

0:05:45.3 PW: In his dissent, Justice Scalia interpreted the term "harm" in the context of the other terms in the statute that Brooke mentioned, capture, kill, pursue, hunt. And he interpreted it to be a term that should be looked at in a manner that was consistent with those other terms, all of which suggested a degree of intent associated with the word "take." And he further went on to point out, looking to some historical precedent and support, that "take" in history, when interpreted in the context of animals, was purposeful. And so for Justice Scalia, the issue was that the Fish and Wildlife Service had overextended the plain meaning of the statute. And this remained in the dissent for a long time. And then when we had the Trump administration come on board in January 2025, not long after, they issued a proposed rule to rescind the definition of harm. Now, it's important to note that the rule itself, which is now final, just rescinds the regulatory definition of harm. It does not replace that definition with another definition. And so while the administration's view is that the Scalia definition or the Scalia interpretation of both "take" and "harm" carries the day from the view of the Trump administration, the administration has not put in place an alternative interpretation of either "take" or "harm." They have just rescinded the definition of harm.

0:07:32.8 PW: So what does this mean for us going forward? Well, on the day that the regulation was published in the Federal Register, two challenges were already filed to the regulation, we may see more on the horizon. What it means for the time being is that there's some uncertainty and that we don't know whether the regulation itself will withstand those challenges. And even if it does, it's not necessarily the case that the interpretation advanced by the federal government of the word harm will prevail, because ultimately, as the court in Loper Bright, which reversed the Chevron case, pointed out, the courts, rather than the agencies or anyone else, are the final arbiters of statutory construction. And so when we're talking about what does a statute mean, the ultimate province to decide that lies with the federal courts.

0:08:33.8 BM: I'll just add from a legal nerd perspective, last year, when Loper Bright... Last year, a couple years ago, when Chevron doctrine was overturned and the Loper Bright decision came down, there was a lot of speculating and theorizing about what this could mean for various environmental laws. And I think this is a good example of one of those scenarios. The final rule discusses Loper Bright. It discusses the original Sweet Home decision, which was in 1995, its reliance on Chevron. And so this is an example of how we're seeing the Loper Bright overturning of the Chevron doctrine play out when it comes to some agency decisions. Now, to Paul's point, how that actually continues when the courts are evaluating is a different question, because ultimately, that's their decision when applying those doctrines.

0:09:27.6 PW: So as to the significance of the rule, Brooke, do you want to talk a little bit about what we are looking at now in terms of the landscape for the regulated community?

0:09:39.7 BM: Yeah, I think we're looking at a lot of uncertainty for the foreseeable future, right? You've got kind of three different buckets of people when I'm thinking about it, probably more than that as we start talking and my stream of consciousness catches up. But we've got folks that are trying to assess whether or not they have a risk of take. Typically, when that involves habitat modification, that's a question of: Will my habitat modification rise to a level of significantly impairing breeding, sheltering, or feeding such that death or injury will occur? That was the definition that was in place. That's what the courts have looked at. That's what Justice O'Connor's opinion emphasized. And that's usually been the key analysis when you are undertaking activity that impacts protected species habitat, whether or not you're at risk of take such that you should be pursuing an incidental take permit under Section 10. For folks that are looking at that right now, this final rule and the preamble to it certainly suggests that take via habitat modification is, to put it casually, not a thing. Paul and I have been talking about instances where can you really say that if you have habitat where you know there's species there and you're going in and crushing or knocking down that habitat, at that point, are you really getting into places where it seems pretty clear there's some sort of injury or death that's happening to protected species by virtue of your habitat modification? How does that really square with some of the language that we see in the preamble that suggests it needs to be affirmative action, more in line with the other words in the definition of take? And so I think for folks that are undertaking... That's a lot of "take" in one sentence, undertaking take assessments from habitat modification, I think there's uncertainty about how comfortable they can feel with this rescission of the definition, because the rescission of the definition does not preclude a third party from bringing a citizen suit and alleging that unauthorized take has occurred. And then you're at the mercy of the court to make their determination of whether prohibited take has occurred. For some folks, that uncertainty be comfortable for you, or it might be that your project timeline, with the backing of the preamble, you have a little bit more support that the activities you're undertaking aren't gonna result in unauthorized take. But I think, in short, it brings a lot of uncertainty to those folks. I think also you have folks that are pursuing incidental take permits under Section 10 for impacts, take that they think is reasonably certain to occur due to habitat modification.

0:12:13.9 BM: For folks that are working on those habitat conservation plans, those are lengthy negotiations with the Fish and Wildlife Service, a lot of resources and time and coordination with the agencies. I think as of today, it's unclear whether or not the agency will continue expending resources, negotiating habitat conservation plans and incidental take permit applications for folks seeking coverage for take that's arising primarily out of habitat modification. I think that's something that we're going to see unfold in the next few months, maybe see some guidance from the service. Then I think the other bucket is folks that are already operating under incidental take permit and habitat conservation plan, where they received take authorization and made commitments in their habitat conservation plan based on take that's arising out of habitat modification. And here, the preamble to the rule does provide some guidance that existing incidental take permits and HCPs still remain valid and in place with those commitments. And so I think that of the three buckets we just talked about, that one is probably the most certain because of the language that they included in the preamble. And Paul, I know you've been having some thoughts on this as well, so please add, supplement, refine.

0:13:27.3 PW: Yeah, I think one of the issues that all of the groups that you're suggesting have to think about is who is their audience. So, for example, if they're thinking about whether they can obtain a permit or whether they can obtain a permit amendment, or whether they should continue to implement requirements under an existing incidental take permit, are they focused on the Fish and Wildlife Service's perspective on whether that's necessary or appropriate, or are they focused on whether a citizen group's perspective is, whether that's necessary or appropriate, or a court? And right now, we have more room for those different perspectives to be misaligned than typically. Even before this rule change, there were certainly citizen groups that would push the envelope when bringing claims under Section 9 for unauthorized take by alleging harm that the service might not interpret to be harm. And so there is always some level of uncertainty, but the opportunity for uncertainty is greater now because of the rule and also because of the uncertain status of the rule itself. One of the issues that you raised, Brooke, earlier, that I think is worth thinking about when we're thinking about how the term take and harm both are interpreted over time, is what is the level of knowledge that is necessary? Because the interpretation put forward by Justice O'Connor, who, even though she was writing on her own in Sweet Home, in some ways really has been the most cited of the three decisions, talked about the potential for take to occur if the conduct involved was essentially negligent, that is, if it was the proximate cause of the take.

0:15:19.5 PW: And so one of the questions is, and this goes to a legal question that we all study in law school when we take torts, is what is the level of intent that's necessary? On the one hand of the spectrum, you have strict liability. And that's the idea that even if you have no intent, even if you didn't know what you were doing or didn't know it was illegal, if you take an action that causes a consequence, you could be liable for it. On the other end of the spectrum, you can have essentially a mens rea standard, which is that you have to have intent. So that's the type of standard we use. For example, we're talking about premeditated murder, that you have to demonstrate that the person who is alleged to be violating the criminal law is purposely intending to do so. And so where are we on the spectrum with the Endangered Species Act? And I think that that's part of what's put in play here. And I don't know, Brooke, if you want to talk a little bit about how that's complicated in the context of development projects, for example.

0:16:29.2 BM: Yeah, I wanted to touch on something with the knowing. We just had the occasion to look back at the case law on this before this final rule came out, and so I always think of the grizzly bear example, right? If you are shooting a protected grizzly bear, and you meant to be shooting another type of bear or something else, the fact that you knew you were shooting something or shooting an animal is enough to establish knowing in many of the court cases that have looked at this. It didn't matter that you didn't know it was a protected grizzly bear. It was the fact that you knowingly were shooting something. And so I think that's interesting with some of the language in the preamble that suggests that it has to be more of an affirmative action against a protected species. Many of the courts haven't come out that way. And so how that aspect of the preamble language squares with this whole concept of taking out habitat that you may know has species in it, how all of those things square, I think, are gonna be a hotly debated topic and fodder for litigation, quite frankly, whether it's litigation against the rule or the rescission of the rules we're seeing unfold, or whether it's an uptick in citizen suits alleging unauthorized take to get the courts to take some initiative in shaping the definition absent a regulatory definition.

0:17:43.4 PW: And one of the challenges with creating bright-line rules is that the facts often make them messy. So, for example, you have a circumstance where someone doesn't know whether they have endangered species on their property, but their property is in an area where the endangered species could occur. Do they have incentive to not look for the endangered species before they develop the property, for example? And is that enough to arise to take? Does it have to be something that they have affirmative knowledge of? And if they don't, do they have some obligation to find out, to do their due diligence, essentially? And that's one of the questions. And just to Brooke's point, with the bear example, there are other species that may be even more difficult to discern, for example, bumblebees. The differences in the characteristics of different species of bumblebees for most laypeople are very difficult to discern unless you perhaps have the bumblebee in hand, which itself would be a take. And so the notion that capturing or harming one species is equivalent to capturing or harming the protected species could become difficult in many circumstances if it's applied too broadly.

0:19:12.4 BM: Paul, you asked me earlier about implications for the development community. You alluded to a lot of them, I just had a couple of other points I wanted to add. In addition to the threat of community opposition and citizen suits, you also have your construction timelines, right? If you're on a long-lead development project and you're not planning to go to construction for four or five years, and there's seasonal surveys to figure out whether you have species there, you have to start planning for your permit now because the permits take several years. I think that's a tough place to be because of the uncertainty with this definition and the lack of knowledge, at least today, on how much traction you'll get with the agencies to try to work with you to determine to either work with you on a permit or help provide technical assistance to avoid take. I think all of that's an unknown. The other party that factors into a lot of these risk assessments are where projects need financing. Financing parties typically tolerate very little risk. And so where you may have a risk of take, and maybe you have a different comfort level with that risk, if you are thinking ahead to securing financing and know that the financing parties may take a more conservative view of risk, even if you don't have community opposition, even if some of these other factors that we've talked about aren't present.

0:20:27.6 BM: Sometimes a lot of your compliance strategy planning is keyed to making sure that you can secure financing when it's time to go to construction. So I think those are additional challenges, and I think for folks with longer lead projects, the uncertainty is the hardest to plan for right now. On the other hand, the service may be issuing some guidance on how they're going to apply the take definition going forward and how they're going to deal with habitat modification for folks seeking incidental take permits. We may see case law play out a little bit both on this rule and maybe on specific instances where folks are alleging unauthorized take that may provide more clarity. And then I think the next place to be thinking is what's going to happen next. We've got litigation that's challenging the rescission of the rule itself. We have maybe some citizen suit litigation that may follow, depending on how things go. If there's a new administration in a few years, will they choose to promulgate a new definition of harm? And then what's that going to look like going through the courts in this post-Chevron Loper Bright scenario? How are the courts going to take that? Is that going to go all the way up to the Supreme Court, which may take a few years? And then, Paul, I know you've been thinking about this quite a bit. What action could Congress take that really nips this issue in the bud?

0:21:53.8 PW: Ultimately, the issue here is one of statutory interpretation as opposed to constitutional authority. And so Congress could step in, and even if the Supreme Court were to uphold the definition of take that's been advanced by the federal government in this circumstance, Congress could ultimately change that definition itself, and that would not run afoul of any issue. The challenge, of course, as any follower of Congress knows, is that there has been a lot of difficulty in Congress enacting laws generally, but in the Endangered Species and other environmental law contexts, the types of regular reauthorization that we saw occurring in the '70s, '80s, and into the '90s are no longer occurring. And so the chances that Congress is going to step in is really anybody's guess, but their recent track record shouldn't give anyone a lot of confidence that they will do so. And so in that circumstance, we are left with ultimately what's the executive branch doing and what are the courts doing in response to that?

0:23:06.2 PW: And in this particular context, we are now in a place where probably for at least the next couple of years, this is going to be in the courts, and the question is going to be how quickly does it progress through the courts before we get clarity, assuming Congress does not step in in the meantime. That is going to lead to a period of continued uncertainty. But in terms of the longer-term horizon, if we do see a change of administration, there's any number of ways a new administration could change course, both through regulation, through less formal practices and guidance, also through its own enforcement preferences and priorities. And obviously both Congress and the administration have the power of the purse, which will have impacts on the ability of the services to carry out the act. And we've already seen that with the changes in workforce at both agencies, it is likely to be the case that they are very substantially challenged. Even before those reductions in workforce that have occurred since the Trump administration came in, the agencies were overtaxed to do the jobs that they were expected to do, and now that's even more the case. And so one question is, are we right-sizing, as I think the Trump administration is trying to do, the obligations of the agency, or if we're not doing so and ultimately a more expansive Endangered Species Act prevails, do the agencies have the personnel to do what they're asked to do? One of the things we talked about a little bit, Brooke, earlier too, that I think would be worth hitting on is a lot of the commentary that we've seen just in this past week raising concerns about this has been very focused on habitat and the potential for habitat to be inadequately protected under the Endangered Species Act. But maybe you want to talk about the Endangered Species Act, which isn't called the Endangered Habitats Act.

0:25:13.7 BM: You read my mind, Paul, because that's been on my mind as well. It's not the Endangered Habitat Act, it's the Endangered Species Act. And I think a popular misunderstanding of the Endangered Species Act is that for non-federal actions, the focus of the take prohibition and the restraints on or constraints on the regulated community is really focused on individual members of the species, death or injury, wound, capture, kill of individualized members, not habitat. Truly, the habitat protections you see arise in Section 7. ESA Section 7 is a federal agency section that focuses where you have either federal lands, federal rulemaking, federal permitting, federal approvals, where you have a federal nexus, then there's protection for habitat. That's where you see the protections for critical habitat arise, for instance. So the first thing I wanted to also make sure we say is that the rescission of the harm rulemaking doesn't affect ESA Section 7. ESA Section 7 and all the consultation process and everything that happens where there's a federal action or federal nexus, that isn't impacted by this rulemaking, except to the extent when you are writing an incidental take statement that might be based on habitat modification, consideration of this may occur.

0:26:36.8 BM: But the protections of critical habitat, the effects analysis for impacts to habitat, all of that remains where you still have a federal action or federal nexus. But where you're talking about private actors, private lands, those sorts of things, the Act has never actually protected habitat except to the extent that it rose to the level of significant impairment of breeding, sheltering, or feeding that resulted in death or injury to an individual member of the species. That was the whole definition. That was the emphasis of the O'Connor opinion. And so I think it's interesting, and I think one of the challenges with administration of the Endangered Species Act and with administration of the take prohibition is the fact that the outright habitat protections in the statutory language itself for non-federal actors, private actors on private lands, are honestly fairly limited.

0:27:28.2 PW: One response to that has been to try and stretch the Act. But perhaps a better response, and one that one would hope to have if Congress was more functional, is to have Congress reauthorize the Act in ways that address these sorts of priorities to the extent that ultimately they are the priorities that Congress thinks are important. And I think in some ways this is analogous to what we're seeing with some other federal environmental statutes like the Clean Air Act, where the EPA has done its best to think about how to regulate climate change contributing gases, greenhouse gases, and there's been a lot of controversy over that in part, because Congress has never stepped in and clarified that those are regulated. If Congress did, then the court's role would be much more limited. Because Congress hasn't, and instead the courts have stretched, we find ourselves in a circumstance where there's been a lot of litigation and obviously a number of recent Supreme Court decisions in the last decade that have gone directly to the scope of agency authority in that context, that have implications also for the scope of agency authority in the context of the Endangered Species Act.

0:28:47.8 BM: And to your point earlier, a more expansive Endangered Species Act might look like an amendment to the Act itself that more expressly provides for protection of habitat, right? That's one of the ways in which it could more expressly expand and put this question to bed. I want to go back to habitat too in the context of ESA Section 7. A question that's come up is, well, what about for all those HCPs where the way you measure your impacts and take, even if you're seeking take because you think there's gonna be injury or death of a protected species, but you're using habitat as a surrogate because there's no easy way to count the species? So you talked about this earlier, thinking about bumblebees, thinking about cave bugs, thinking about fairy shrimp, thinking about cryptic species that are hard to count. Habitat surrogacy, counting acres impacted as a surrogate or proxy for understanding your impacts, is a common tool. And so I think that goes to one of the things we were talking about in the beginning. Where you know there's a species and you're gonna be impacting that habitat and you think there's a risk of take, it's take via habitat modification, but there's a pretty clear line to death or injury, or one could argue that. And then in those cases, it's much easier to count in acres than it is to count individuals.

0:30:09.8 PW: Yeah, and I think that it's pretty clear that while the rule talks about habitat modification in a bright line sort of manner, that even the folks crafting the rule would likely give the latitude that habitat modification can be take in certain circumstances. I think one of the examples that Justice Scalia actually uses is draining a pond so that the fish in the pond no longer have water. If you dry out a river that has endangered species in it and so there's no more water for the species, I do think that that could constitute take. Again, you may have to know that the species is there. It may have to be viewed as there is a proximate causation issue. So if it's a question of whether the drying out occurred as a consequence of the conduct of the person that's subject to regulation or entity that's subject to regulation, but ultimately that sort of habitat modification could amount to take. But when it comes to other much more attenuated sorts of habitat modification that have constituted take in the past, I think we could see a contraction as a consequence of the rule.

0:31:32.5 BM: This rule rescission just happened. We've already seen a number of lawsuits filed, how far they'll make it, where they'll go from that, whether the Service is going to issue guidance, there's a lot of uncertainty that's going to happen over the next few months. Paul, if you had your crystal ball, how do you think these next few months will play out?

0:31:51.0 PW: I will say that I think the administration is going to be motivated to try and address and resolve the lawsuits before the current term ends. And so I expect that we'll see them trying to move the litigation along. In addition, the issues that are raised in the lawsuits are essentially purely legal issues, and as a consequence, the lawsuits should be amenable to being moved along in a relatively expeditious way. Now, we've already seen lawsuits filed in multiple venues, and so there will be some venue questions that maybe need to be sorted out, and there's a question of whether they will be consolidated in a single venue, which would make them more efficient to process. I expect that in the next 24 months, we will see a lot of activity in those cases. And then the question's gonna be whether there are other cases that arise, for example, in the context of Section 9 liability that's been alleged by plaintiff groups against individual entities that also raise this issue. And as you alluded to, Brooke, we're also gonna have to see what kind of guidance we see out of the agencies. It's foreseeable that they will be less interested in processing the types of HCP applications and ITP applications that they have in the past and that they will take a narrower view, but that's unclear. And they will have to weigh their stridency in their view of the scope of the term take with the value for the regulated community of getting authorization that is gonna be durable over time so that those folks don't have to go back in, let's say, in a new administration and seek take for a whole other class of activities that the current administration refused to cover. So that's what I see in my crystal ball.

0:33:54.5 BM: I do think that this administration, when they've taken action, whether it be via rulemaking or executive orders or policies, has made a point to provide guidance to its field offices. Sometimes it takes a bit for that guidance to get disseminated across the field offices for consistent application. So I think there will be some guidance issued, how quickly and how quickly it gets broadly disseminated will be a question. I think to the extent there are significant developments in this space with the litigation and application of the take prohibition now that the harm definition has been rescinded, we will come back to you to touch base and update you all on the developments that have happened here given the uncertainty that exists today. Thank you for listening to us today. We appreciate you joining us for this episode of Digging Into Land Use Law. For additional information on this topic or other environmental and land use matters, please visit our website at nossaman.com. And don't forget to subscribe to Digging Into Land Use Law wherever you listen to podcasts so you don't miss an episode. Until next time.

[music]

0:35:09.9 S2: Digging Into Land Use Law is presented by Nossaman LLP and cannot be copied or rebroadcast without consent. Content reflects the personal views and opinions of the participants. The information provided in this podcast is for informational purposes only, is not intended as legal advice, and does not create an attorney-client relationship. Listeners should not act solely upon this information without seeking professional legal counsel.