Blog

In mid-July, the United States Fish and Wildlife Service (“FWS”) together with the National Marine Fisheries Service (“NMFS”) (collectively, “the Services”) finalized a rule to rescind the regulatory definition of “harm” under the Endangered Species Act (“ESA”). The term is part of the ESA’s overall prohibition on “take” of protected wildlife and has been defined through regulation since 1975. In rescinding the rule, the Services allege that the definition of “harm” does not match the best possible interpretation of the ESA. Since the recission was finalized, at least four federal lawsuits have been filed by environmental groups and Native American Tribes, claiming that rescinding the definition violates federal law.

Under the ESA it is illegal to “take” any wildlife species that have been listed as either threatened or endangered. The term “take” is broadly defined under the ESA as “to harass, harm, pursue, hunt, shoot, wound, trap, capture, or collect, or to attempt to engage in any such conduct.” FWS first adopted a regulatory definition of “harm” for the purposes of “take” in 1975. That definition was slightly modified in 1981 and until the recission rule, “harm” was defined as “an act which actually kills or injures wildlife [including] significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” NMFS adopted the same definition in 1999.

By defining “harm” to include “significant habitat modification or degradation” that “actually kills or injures wildlife,” the Services interpreted the prohibition on “take” of protected species to include destruction of species habitat even if habitat destruction did not involve directly killing or injuring a member of the species. For example, under the 1981 definition of “harm,” it would be a violation of the ESA to cut down a stand of trees that provide habitat to an endangered species of bird even if none were directly killed when the trees were cut down.

The Supreme Court upheld this definition of “harm” in its 1995 decision, Babbitt v. Sweet Home Chapter of Communities for A Great Oregon,where the Court held 6-3 that the definition was “reasonable” in light of the “broad purpose” of the ESA to protect endangered and threatened wildlife. Because the Court concluded that the definition was reasonable, it relied on the doctrine of Chevron deference to decide the case. In a dissenting opinion, Justice Scalia disagreed with the majority’s conclusion and instead would have limited it to acts that directly kill or injure protected wildlife. According to Justice Scalia, limiting “harm” to direct acts against wildlife makes sense when looking at the statutory definition of “take” which includes other direct actions like pursue, hunt, shoot, and wound.

In their final rule to rescind the “harm” definition, the Services explained that the action was prompted by the Supreme Court’s 2024 ruling in Loper Bright Enters. v. Raimondo,where the Court overturned Chevron deference. When the Court issued Loper Bright, it recognized that many of its previous holdings were based on Chevron deference and concluded that those cases were still good law and should not be considered invalid or overturned because of the Court’s Loper Bright decision.

Although the Services acknowledged that pasts cases which relied on Chevron deference were still valid in their final recission rule, they argued that, as part of the Executive Branch, they have a constitutional responsibility to “take care that the laws be faithfully executed.” Because the Services believe that the single, best interpretation of the ESA’s “take” prohibition was given by Justice Scalia in his Babbit dissent, they moved to rescind the “harm” definition and limit “take” to actions that directly kill or injure protected species.

The recission rule is set to go into effect on September 14, 2026, and already at least four lawsuits have been filed to challenge it. All four claim that the recission violates the Administrative Procedure Act (“APA”) and ask that the rule be overturned. The plaintiffs in each lawsuit allege that the recission rule violates the APA because the Services did not provide a “reasonable rationale” for rescinding the “harm” definition.

The plaintiffs claim that the recission rule is “arbitrary and capricious” because the only explanation the Services provided to support rescinding the “harm” definition is an improper interpretation of Loper Bright. They argue that under the Loper Bright standard, it is courts, not agencies, that determine the single, best interpretation of the law. According to the plaintiffs, the recission rule cannot be the best interpretation of “harm” because it is one that the Supreme Court has rejected. They claim that the Services failed to explain how or why Justice Scalia’s dissent in Babbit, rather than the majority opinion, articulates the “single, best” meaning of “take” under the ESA.

Rescinding the regulatory definition of “harm” is likely to have broad impacts for a variety of reasons. For property owners and agricultural producers, the recission could result in reduced regulation at least as long as the rule remains in place. However, perhaps an unintended outcome of the recission rule is the opportunity to get a better understanding of how courts will treat Loper Bright going forward. The standard established by the Supreme Court in Loper Bright is still relatively new, particularly when compared with Chevron deference which was in place for decades before being overturned. For an industry as heavily regulated as agriculture, how courts treat agency rules interpreting statutory language is an important part of understanding how the law impacts day-to-day operations.

Recommended citation format: Rollins, Brigit. “Services Rescind ESA Definition of “Harm,” Face Lawsuits.” Southern Ag Today 6(34.5). August 21, 2026. Permalink