ESA 'Harm' Rule Rescinded

The U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) recently finalized a rule rescinding the regulatory definition of "harm" under the Endangered Species Act (ESA). The rule removes longstanding language that interpreted "harm" within the ESA's prohibition on "take" to include certain forms of habitat modification or degradation that injure protected species. The agencies maintain that habitat conservation remains addressed through other ESA provisions. 

In an evolving regulatory environment, sound science remains the most durable foundation for identifying risks, evaluating alternatives, and supporting defensible decisions.

Although future actions and court decisions will likely shape its long-term implications, the change does not eliminate the need to understand how projects affect species and ecosystems. Instead, it may shift where scientific questions arise in project planning, permitting, and litigation.

Proactive planning still depends on sound science

For projects intersecting with species protection, proponents may view the change as reducing regulatory exposure associated with potential habitat impacts; indeed, the revised definitions may streamline forthcoming development projects, such as the construction and operation of data centers, renewable energy infrastructure, utility transmission corridors, and highways and bridges. Habitat considerations remain central, however, to environmental planning, stakeholder expectations, and many regulatory processes. 

In practice, the previous definition of harm provided broad latitude to protect species by protecting ecosystems. With the recension, the effects of development on habitats and species might face heightened scrutiny by agencies and the public, particularly relevant for projects that occur or cross into states with existing laws that supersede federal ESA requirements (e.g., New Jersey). The recension might also cause states to enact additional protective legislation (e.g., California) or to begin referencing existing laws that offer other legal routes of habitat and species protections.

As a result, companies and developers can benefit from continuing to evaluate and minimize potential impacts to protected species and habitats regardless of how the legal definition of "harm" evolves. Organizations that rely on robust ecological assessments, risk evaluations, and scientifically supported mitigation strategies are often better positioned to navigate permitting processes, maintain stakeholder confidence and social license to operate, and adapt to future regulatory changes.

In an evolving regulatory environment, sound science remains the most durable foundation for identifying risks, evaluating alternatives, and supporting defensible decisions.

Litigation strategies may shift, not disappear

The rescission of the regulatory definition of "harm" is unlikely to diminish the role of science in environmental litigation. Instead, plaintiffs may increasingly focus on alternative theories of impact and liability. Importantly, the scientific underpinnings of these alternative approaches may be less developed and require careful scrutiny. Citizen and NGO enforcement lawsuits may additionally shift focus to state or other federal species protection laws, such as the Marine Mammal Protection Act, or even international endangered species protection laws such as the Migratory Bird Treaty Act.

Scientific support for evolving ESA requirements

Whether organizations are evaluating projects proactively or responding to regulatory and litigation matters, the scientific questions driving environmental decision-making remain central: Is there a causal link between habitat modifications and harm to protected species? What evidence supports that conclusion? And how should that evidence inform project planning, permitting, and dispute strategy?

Addressing these questions may involve:

• Evaluating the potential effects of projects and operations on protected species and habitats.
• Assessing exposure, causation, and the biological significance of alleged impacts.
• Providing scientific analyses and expert testimony in complex environmental disputes.