With Earth Day just a few days away, it is, to put it mildly, unfortunate that the Endangered Species Act of 1973 is currently under threat from political battles and partisan ideologies. The act is a critical piece of legislation that establishes regulations and definitions regarding native species in the United States facing extinction and the role of the US government, particularly the Department of the Interior, in protecting endangered species. It, for example, defines what constitutes harm to species by prohibiting the “take” of an endangered species, which “means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” This definition comes from centuries-old understanding of the word but over the years, the definition of harm has also come to include actions that indirectly result in the killing or injuring of wildlife, like habitat modification or degradation from commercial efforts.
However, the US Fish and Wildlife Service and the National Oceanic and Atmospheric Administration, the two federal agencies tasked with being administrators of the Act, have recently proposed to rescind that specific definition of harm under the ESA, claiming that the regulatory definition of “harm” (the definition that includes habitat modification/degradation) runs contrary to the best meaning of the statutory term “take”. They are, reportedly, “undertaking this change to adhere to the single, best meaning of the ESA”, as the original language in the ESA only defines the term take as “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect.”
The argument for this change can be summed up in the dissenting opinion of the Supreme Court Case Babbitt v. Sweet Home – 515 U.S. 687, the 1995 court case that led to the more specific and current definition of harm, which includes habitat degradation. Justice Antonin Scalia (who is thankfully dead as a doorknob) argued in his dissenting opinion “that in the context of wild animals, “take” should be interpreted more literally, as an affirmative act directed against a particular animal, not an act that indirectly causes injury to a population.” Basically, Scalia argued that the term take was to be used towards individual animals rather than whole populations. The harming or killing of individual animals fell within the ESA’s regulations but the injuring of animal populations through influencing their habitats or behaviors did not.
But conservationists and experts disagree with this notion, arguing that actions that indirectly cause death or injury to a species, like habitat destruction, still constitute harm and ultimately, the end result is the same. The killing of an individual animal versus a decrease in offspring born because breeding habitats are gone still results in a population decrease and harm to the species. Like many other conservation organizations, the Center for Biological Diversity put out a statement against this proposed change. In this statement, Noah Greenwald, the codirector of endangered species at the Center, sums up why:
“There’s just no way to protect animals and plants from extinction without protecting the places they live, yet the Trump administration is opening the floodgates to immeasurable habitat destruction. This administration’s greed and contempt for imperiled wildlife know no bounds, but most Americans know that we destroy the natural world at our own peril… Without a prohibition on habitat destruction, spotted owls, sea turtles, salmon, and so many more imperiled animals won’t stand a chance… Trump is trying to drive a knife through the heart of the Endangered Species Act.”
This proposed change in the language of the ESA is alarming for many, many reasons. One is the recent ending of “Chevron deference” in 2024, which means we are no longer relying on the expertise of agencies to interpret ambiguous language in regulations and laws. As Justice Elena Kagan wrote in her dissenting opinion of this ruling, the majority of the Supreme Court gave “itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law.” The limitation of the definition of harm within the ESA and the end of Chevron deference is a slap in the face of every scientist and conservationist who has spent their lives researching and becoming experts in their fields.
Additionally, this change would both significantly limit the power of the Endangered Species Act while simultaneously allowing for commercial development of critical habitats and ecosystems for the benefit of a handful of corporations. Public lands that benefit the people, flora, and fauna of this country would become more easily accessible to corporations and would be easier to destroy with logging, oil extraction, and more. Old-growth forests here in the Pacific Northwest, for example, could and likely would become logging grounds. Climate change would continue to accelerate while continuing to directly result in deaths and billions in property damage.
Much like life during Trump’s first administration, we as a country are at yet another crossroads. When it was signed in 1973, the Endangered Species Act had near-unanimous political support and was signed by President Nixon (arguably the best thing to come from that administration). While it had bipartisan support, there were and continue to be conflicts between environmentalists and certain industries over the ESA. The Babbit vs Sweet Home Supreme Court case, for example, is a prime example of that, as it started over the logging rights of an Oregon forest where the endangered northern spotted owl lived.
The Endangered Species Act has been in effect for more than five decades and while it has seen some major successes, there are still some species facing conflicts and declining populations and habitats. The ESA is not a perfect piece of legislation but by redefining what harm is within the ESA, this federal administration will make it much, much easier to destroy entire habitats and ecosystems, causing irrefutable and immutable changes to our earth. It would also erase the last fifty-plus years of work towards conservation. While towns and lifestyles have been challenged and even erased, the alternative is a world without nature or biodiversity. We have the chance to live in harmony with the natural world around us and the ESA gives us that framework to try.
So what can we do? Well, a lot of things. Show up to protests when you can and know your rights, something that is also important to know around ICE as well. Call your elected officials; organizations like 5 Calls and the League of Conservation Voters have information on how to contact your representatives and their congressional voting records. Keep updated on issues while also keeping yourself sane. During the first Trump administration, Steve Bannon spoke about their strategy in an interview; basically, it was to “flood the zone” and keep a flurry of policies and decisions going to overwhelm their opposition. By doing this, there was and continues to be constant talk about everything that happening from the White House but not everything gets equitable coverage and more things are able to sneak through. By keeping updated on these policies, we (being the public) can stay involved and attempt to hold our government accountable.
Get involved. Earth Day is coming up and there are so many things happening! EarthDay.org is a great way to find an event near you. If you’re in Bellingham, WA like I am, Re Sources is having a beach clean up from 9-11am near Waypoint Park in downtown Bellingham. Plus, Children of the Setting Sun is having an Earth Day rally from 12-3pm on Bay St in downtown, just a few blocks from where Re Source’s beach clean up is happening. While Earth Day is happening on a Tuesday this year, there are ways to get more involved year-round as well. There are plenty of beach cleanups and park work parties planned for the spring and summer and there are some really cool environmental organizations here in the Pacific Northwest, like Oregon Wild, Re Sources, Conservation Northwest, and Na’ah Illahee Fund.
Photo Credit: Kyle Sullivan, BLM
