Critics decry ‘radical’ policy change, file suit
For wildlife facing possible extinction, protecting the places where they live, eat and reproduce has long been an essential part of federal law that helps those animals recover and survive.
No longer.
This month the Trump administration reversed a longstanding approach to protecting habitat for the nation’s imperiled animals and plants, a change described by conservationists as a radical policy reversal that will open up critical wildlife habitat to activities like drilling, mining, development and agriculture.
The change results from a new interpretation of a single word — “harm” — in the Endangered Species Act (ESA), a foundational environmental law passed in 1973 to protect imperiled plants and animals.
For more than 50 years, the ESA has protected species designated as threatened or endangered from “harm” that includes injuring or killing them. The definition of “harm” has been understood to also apply to actions that changed or degraded the habitats that at-risk species need for their survival.
For example, dams blocking salmon migration, logging projects that cut down trees used by nesting owls, and oil and gas development that disturb polar bears have been regulated to protect species from actions that could injure or kill them.
While projects and developments that impact wildlife habitats may not be prohibited entirely, mitigation measures have been required to reduce negative impacts on affected species.
On July 10 the Interior Department and the Commerce Department announced a final rule that rescinds the longstanding interpretation of “harm.” In a statement, the agencies said the prior definition was “an unlawful regulatory intrusion that interfered with private property rights.”
Past policy allowed federal agencies “to obstruct lawful land use and burden American families and businesses,” said Doug Burgum, Interior secretary.
Actions that directly injure or kill listed wildlife will continue to be prohibited, the federal agencies said. The new rule that reinterprets the concept of “harm” will take effect Sept. 14.
Conservationists say the change will impact an array of wildlife from polar bears in Alaska to manatees in Florida, and many species found in the Northwest including grizzly bears, salmon and steelhead, northern-spotted owls and Canada lynx.
Legal challenges
The new rule drew immediate legal challenges from conservation groups and tribes in Washington state and other parts of the country.
In U.S. District Court in Seattle, a coalition of nine conservation organizations filed a lawsuit last week against the U.S. Fish & Wildlife Service and NOAA Fisheries.
Also in the Seattle court, the Swinomish and Squaxin Island tribes joined in a lawsuit, and the Puyallup Tribe filed a separate suit.
In a statement, the Swinomish tribe called the rule a “tragic and radical policy reversal that will cause devastating impacts to Swinomish’s cultural lifeways, economic interests, and the Tribe’s fish guaranteed by the Treaty of Point Elliott.”
“This new rule is anti-science and will result in fewer salmon to feed our families, cause drastic setbacks in our efforts to recover ESA-listed salmon, starve Orcas, and ultimately impose serious injury to the Swinomish Tribal community members,” said Swinomish Tribal Chairman Steve Edwards.
The proposed rule change was first announced in April last year. During a public comment period that followed, the Swinomish “submitted thousands of pages of best science that show how unjustified it is to suddenly remove key regulations that protect the habitats that ESA-listed salmon need to recover,” said Tandy Wilbur, a Swinomish senator and fisheries manager.
“As descendants of the maritime people who have fished along the shores of the southern inlets of the Salish Sea for thousands of years, the Squaxin people know that habit protection and restoration is essential to species recovery,” said Joe Peters, a Squaxin tribal member and natural resources policy representative.
The coalition of environmental organizations, many based in the Northwest, are being represented by Earthjustice in their lawsuit.
“Preventing harm to wildlife by protecting where they live, eat and sleep is the foundation of the Endangered Species Act,” said Earthjustice attorney Kristen Boyles.
“The Trump administration repeal violates the core purpose of the statute and decades of legal precedent, including from the Supreme Court,” Boyles said.
In 1995, the U.S. Supreme Court upheld the “harm” definition’s inclusion of habitat destruction, in a case that affirmed the government’s broad authority to require private landowners to protect the habitat of endangered wildlife. In its ruling, the court found the definition was supported by the ordinary meaning of “harm,” as well as by the purpose of the ESA, and indications of Congressional intent.
“There’s absolutely no science that separates harm to habitat from to harm to species,” Boyles said.
“Every animal and plant needs a home for food, shelter and reproduction,” said Dave Werntz, a Twisp resident and science and conservation director for Conservation Northwest, one of the conservation groups filing the lawsuit.
“For wildlife trending toward extinction, access to high quality, ecologically functional and well-connected habitat is essential for survival and recovery,” Werntz said.
Other groups involved in the lawsuit include the Center for Biological Diversity, Columbia Riverkeeper, Conservation Law Foundation, Friends of the Wild Swan, Oregon Wild, Sierra Club, Swan View Coalition, and WildEarth Guardians.
In addition to the lawsuits filed in U.S. District Court in Seattle, lawsuits challenging the new rule have been filed in federal courts in San Francisco and Charleston, S.C., Boyles said.
‘Remarkably unsupported’
During a 30-day public comment period last year on the proposed change to the ESA, almost 243,000 comments were submitted, according to information from the Fish and Wildlife Service. An analysis of comments conducted by The New York Times found that about 99% were against the change.
Among those asking the administration to reconsider were state wildlife agencies in some Republican-governed states, and attorneys general from 16 states, the Times reported.
“This (change) is remarkably unsupported, from public, scientific and legal perspectives,” said Boyles.
Among supporters of the change are industries — such as mining, oil and gas, and timber — that are impacted by restrictions designed to protect habitat.
In a statement, the National Mining Association said “the definition of ‘harm’ has long been abused to serve as a punitive obstacle impeding critical projects.”
Boyles said another industry that has grown over the past 50 years — habitat conservation and restoration — will suffer as a result of the change to the ESA.
“There are economic interests at stake for people whose jobs are habitat restoration,” Boyles said.
“A national trade association representing ecological restoration investment firms explained that, if finalized, the Proposed Rule would effectively strand nearly half a billion dollars’ worth of investments in conservation outcomes made in reliance on the longstanding regulatory definition of harm,” the conservation coalition’s lawsuit states.
The lawsuit says that in finalizing the rule rescission, the federal agencies failed to conduct an environment analysis required by the ESA to evaluate the impact of the change.
And Boyles predicted the repeal of the “harm” definition would result in “complete confusion across the regulated community about habitat protection measures in existing habitat conservation plans.”
Habitat conservation plans are documents that allow economic development projects to be carried out while specifying actions that mitigate harm to plants and animals. Mitigation measures include things like limiting tree cutting or construction to specific months to avoid critical breeding or nesting seasons, or restoring native vegetation or riparian areas.
Imminent habitat destruction
In their lawsuit, the conservation groups warn of “imminent habitat destruction” as a result of the rule change, and provide the Northwest Forest Plan as an example.
The U.S. Forest Service is currently in the middle of an amendment process for the Northwest Forest Plan, which governs management of 17 national forests across 24.5 million acres in Washington, Oregon, and northern California — including the Okanogan Wenatchee National Forest and the Methow Valley Ranger District.
Proposed changes to the Forest Plan in 2025 included increased logging in habitat for the threatened northern spotted owl and marbled murrelet, the lawsuit says.
As a result of the new interpretation of “harm,” the likely result will be “inadequate habitat protections for the northern spotted owl and marbled murrelet, as well as threatened and endangered salmon, steelhead, and trout, which will in turn allow actions that increase extinction threats to those species,” according to the lawsuit.
Some legal experts have said lawsuits challenging the new interpretation of “harm” could wind up before the Supreme Court again, as happened in 1995. In that case a majority decision found habitat modification constitutes harm in violation of the Endangered Species Act.
The Trump administration is justifying its decision to change its definition of “harm” based on a dissenting opinion in that case filed by Justice Anonin Scalia, who said equating harm to habitat as harm to wildlife “makes nonsense of the word.”
The federal agencies are relying on the Scalia dissent to support the rule change “notwithstanding that the … majority rejected that very interpretation as inconsistent with the statutory text, structure, and legislative history,” the Earthjustice suit said. The change is “contrary to law and (a) failure of rational decisionmaking,” according to the suit.
If the current conservative court, which includes Scalia, considers the “harm” issue again, it could uphold the rule change, preventing future administrations from reversing it.
“Of course, we would be concerned about a case reaching the supreme court,” Boyles told the Methow Valley News. “But we are certain that this is an invalid move for this administration.”
