Trump administration sued over redefinition of 'harm' under Endangered Species Act

(CN) — No harm, no foul? Environmentalists say that adage doesn’t apply here.

A group of environmental organizations sued the Trump administration in Seattle federal court Tuesday after the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) announced the removal of the word “harm” from Endangered Species Act regulations on habitat protection.

“The rescission discards a longstanding and critical regulatory protection for imperiled wildlife based upon an irrational and unsupported interpretation of the ESA that would undermine the act’s extraordinary record of success in preventing the extinction of and recovering threatened and endangered species,” the plaintiffs, which include the Center for Biological Diversity and the Conservation Law Foundation, wrote in their complaint.

Since 1975, FWS has defined “harm” to include “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”

Although the Supreme Court upheld its legality in 1995, that fifty-year-old definition will be out the door effective September 14.

The environmental groups say this decision could impact threatened species like Florida manatees, grizzly bears and fish and birds species including imperiled salmon and owls, along with Hawaiian monk seals, Canada lynx and insect pollinators.

But in their July 10 announcement calling the language unlawful, the agencies claimed the prior definition of “harm" conflicted with personal property rights, called it “inconsistent with the structure of the ESA” and declined to issue a replacement definition.

“For years, federal agencies abused the ESA to obstruct lawful land use and burden American families and businesses,” Department of the Interior Secretary Doug Burgum said in a statement accompanying the announcement of the rescission.

“That approach turned routine activity into a regulatory trap, drove up costs that impacted people’s lives and expanded federal authority beyond what Congress intended. This action restores common sense, respects private property, provides much-needed certainty for landowners and follows the statute Congress actually passed," he said.

FWS and NMFS said they would adopt the rationale of former Supreme Court Justice Antonin Scalia, a vocal conservative who dissented in 1995 when the high court upheld the word’s use in regulation.

Burgum, Secretary of Commerce Howard Lutnick and other Trump administration officials are named as defendants alongside the two agencies.

They are accused of violating the Endangered Species Act and the Administrative Procedure Act. The plaintiffs are asking a court to vacate the rescission and reinstate the former definition of harm.

“The purpose of the Endangered Species Act is not only to protect threatened and endangered species, but to protect the very ecosystems they need to survive,” Sarah Shahabi, a Conservation Law Foundation attorney, said in a statement. “This unlawful rule guts long-standing protections and allows for the destruction of habitat to such an extent that vulnerable species like Atlantic salmon will be pushed closer to extinction.”

The plaintiffs also claim the agencies failed to engage in consultation, as specified by the ESA, before the rescission. FWS and NMFS said they received approximately 358,000 public comments on their proposal to rescind the language, as well as multiple requests for public hearings.

“The services did not acknowledge the public comments containing extensive scientific evidence that the rescission would negatively affect protected species. The services attempted to deflect questions about the rescission’s effects by pointing to other sections of the ESA that address habitat conservation in specific, limited circumstances,” the plaintiffs wrote.

Earthjustice is representing the plaintiffs, among which are organizations like Columbia Riverkeeper, Conservation Northwest, Friends of the Wild Swan, Oregon Wild, Sierra Club, Swan View Coalition and WildEarth Guardians.

“Habitat loss is the leading driver of extinction. By weakening the harm rule, the Trump administration is literally attacking vulnerable wildlife where they live,” John Persell, an attorney for plaintiff Oregon Wild, stated. “This gutting of the Endangered Species Act is part of a broader assault on our bedrock environmental values… The Trump administration is determined to waste, loot and pollute America’s natural heritage.”

Neither Fish and Wildlife Services nor the National Marine Fisheries Service immediately responded to requests for comment.