Proposed changes to the Endangered Species Act face an uncertain future

The April posting in the Federal Register by the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration was a bombshell. The feds are proposing to eliminate the regulatory Endangered Species Act’s definition of “harm.” Full stop.

The ESA declares that it is illegal to “take” any member of a protected species and then goes on to say, “The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”

The U.S. Code of Federal Regulations specifically defined harm “in the definition of ‘take’ ” in the ESA to mean “an act which actually kills or injures wildlife. Such act may include significant habitat modification (italics added) or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”

Eliminating “harm” from the ESA’s definition of “take” — excluding “significant habitat modification” — one environmental group says would be “callous and reckless.”

I am sure environmental groups fear the proposed modification to the ESA will make it difficult, if not impossible, to file some lawsuits – such as the one litigated over the rusty patch bumblebee. If habitat modifications no longer constitute harm it will be far easier for the gas, timber and oil industries to obtain permits. Fewer projects will be red-lighted or required to do mid-build modifications to account for at-risk species.

It’s a big freaking deal. A seismic shift in how the U.S. protects plants and animals. And one that was litigated by the U.S. Supreme Court almost three decades ago.

In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, the Supremes applied the Chevron doctrine to rule in favor of the Secretary of the Interior’s preferred definition of harm that includes “significant habitat modification or degradation where it actually kills or injures wildlife” over the plaintiffs’ challenge that Congress did not specifically intend the word “take” to be applied to habitat:

“We need not decide whether the statutory definition of ‘take’ compels the Secretary’s interpretation of ‘harm,’ because our conclusions that Congress did not unambiguously manifest its intent to adopt respondents’ view and that the Secretary’s interpretation is reasonable suffice to decide this case. See generally Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). The latitude the ESA gives the Secretary in enforcing the statute, together with the degree of regulatory expertise necessary to its enforcement, establishes that we owe some degree of deference to the Secretary’s reasonable interpretation.”

Justice John Paul Stevens’s majority opinion in Chevron set the legal precedent:

“Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.”

If the Chevron doctrine rings a bell, that is because it wasn’t all that long ago the Supreme Court blew it to smithereens.

In its Federal Register filing, the FWS now argues “the existing regulatory definition of ‘harm,’ which includes habitat modification, runs contrary to the best meaning of the statutory term ‘take.’ We are undertaking this change to adhere to the single, best meaning of the ESA.”

The Fish and Wildlife Service cites Supreme Court Justice Antonin Scalia’s minority opinion in Babbett (1995) to make its case:

“If ‘take’ were not elsewhere defined in the Act, none could dispute what it means, for the term is as old as the law itself. To ‘take,’ when applied to wild animals, means to reduce those animals, by killing or capturing, to human control. To define ‘harm’ as an act or omission that, however remotely, ‘actually kills or injures’ a population of wildlife through habitat modification is to choose a meaning that makes nonsense of the word that ‘harm’ defines — requiring us to accept that a farmer who tills his field and causes erosion that makes silt run into a nearby river which depletes oxygen and thereby ‘impairs [the] breeding’ of protected fish has ‘taken’ or ‘attempted to take’ the fish. It should take the strongest evidence to make us believe that Congress has defined a term in a manner repugnant to its ordinary and traditional sense.”

The FWS gave the public just one month to provide comments to this “harm” and “take” word salad. It received more than 375,000 responses. The public is engaged and watching.

You can bet if the Fish and Wildlife Service proposal is finalized as is in the Federal Register, there will be years of litigation ahead. Tooth and nail.