By Lindsey Sasson
A single word now sits at the center of one of the most important fights over wildlife protection
in the United States: harm.
For decades, federal agencies interpreted “harm” under the Endangered Species Act to include
serious habitat destruction that kills or injures protected wildlife. That definition was based on a simple
ecological reality: a species cannot survive if the places where it eats or shelters disappear. That
interpretation was upheld by the Supreme Court in Babbitt v. Sweet Home Chapter of Communities for a
Great Oregon, which accepted the agencies’ view that “harm” could include significant habitat
modification that actually kills or injures protected wildlife. In July 2026, the U.S. Fish and Wildlife
Service and National Marine Fisheries Service finalized a rule rescinding the regulatory definition of
“harm” under the Endangered Species Act, with an effective date of September 14, 2026. The statutory
word “harm” remains in the ESA’s definition of “take”; what changed is that the agencies removed the
regulatory definition from 50 C.F.R. parts 17 and 222. The change has already triggered lawsuits,
warnings from conservation groups, and debate over property rights, development, energy production,
and ecological survival.
This fight captures the broader dilemma of resilience in a fractured future. Climate change,
habitat loss, pollution, and political polarization are converging faster than traditional governance
systems can adapt. The question is no longer only whether the ESA can prevent extinction, but rather,
whether environmental law can remain resilient when the meaning of core protections changes from
one administration to the next, and when courts now play a larger role in deciding what agencies may
do.
The ESA has always been more than a wildlife statute. It is a framework for protecting the
ecosystems that make recovery possible. The Fish and Wildlife Service describes the ESA’s purposes as
conserving endangered and threatened species and the ecosystems on which they depend. That
ecosystem focus matters because modern extinction risk is rarely caused by one threat. Climate change
intensifies drought, warming waters, wildfire, disease, invasive species, and food loss. Habitat protection
is the connective tissue that helps species withstand those pressures.
Florida manatees show why the definition of “harm” matters. In July 2026, Flagler News Weekly
reported that Save the Manatee Club opposed the new federal rule, warning that removing habitat
destruction from the ESA’s harm definition could weaken protections for seagrass beds, clean water,
and warm-water winter refuges. The group’s executive director argued that ESA protections helped
manatees recover from fewer than 1,000 individuals in the 1960s, but that the species remains
vulnerable. The organization also pointed to the 2020-2022 Unusual Mortality Event, when more than
1,200 manatees died, largely from starvation tied to seagrass loss in the Indian River Lagoon. For
climate-stressed species, habitat loss is often not indirect harm. It is the mechanism of decline.
The federal government, however, frames the rule differently. NOAA Fisheries argued that the
final rule would maintain endangered species protections while reducing permitting burdens and
compliance costs. Industry groups, including oil, petroleum, and construction interests, have supported
the rollback as a way to reduce regulatory uncertainty.
Those arguments point to a real governance problem. Conservation rules can impose costs,
delay projects, and create uncertainty for landowners and developers. A durable ESA cannot ignore
those concerns. But weakening habitat protection may simply replace one kind of uncertainty with
another.Earthjustice and other environmental groups sued in federal district court in Seattle, arguing
that the repeal contradicts the statute, decades of legal precedent, and basic science. NPR also reported
that the Swinomish Indian Tribal Community and the Squaxin Island Tribe sued, warning that loss of
habitat protection for ESA-listed salmon would injure the Tribes and their members.
This is where Loper Bright Enterprises v. Raimondo becomes central. In 2024, the Supreme Court
ended Chevron deference, holding that courts must exercise their “independent judgment” when
deciding whether an agency has acted within its statutory authority, and may not defer to an agency’s
legal interpretation simply because a statute is ambiguous. Loper Bright Enterprises v. Raimondo, 144 S.
Ct. 2244 (2024). That changes the legal terrain for the ESA’s “harm” fight. Courts reviewing the new rule
will not simply ask whether the agencies offered a reasonable interpretation. They will decide for
themselves what the ESA allows.
That shift cuts in both directions. Environmental groups can argue that excluding habitat
destruction conflicts with the ESA’s purpose and long-standing legal understanding. Industry supporters
can argue that earlier agency interpretations stretched the word “harm” beyond what Congress
authorized. Either way, Loper Bright makes the dispute less about agency expertise and more about
judicial interpretation.
The litigation also reveals a deeper fracture: different actors increasingly define resilience in
different ways. For some, resilience means reducing regulatory burdens so housing, infrastructure,
energy, and private land use can move forward. For others, resilience means protecting ecological
systems before they collapse. Both concerns matter. Development without ecological limits can destroy
the systems communities depend on. Conservation without social legitimacy can become politically
unstable.
That instability is now one of the ESA’s greatest weaknesses. Federal ESA regulations were
revised in 2019, revised again in 2024, and later targeted for additional revisions. The 2024 rule
reinstated the “blanket rule” option for newly listed threatened species, after the 2019 rule had
removed that option for species newly listed after September 26, 2019. In 2025, FWS and NMFS
proposed rescinding the regulatory definition of “harm,” including its treatment of habitat modification.
Species recovery often takes decades, yet regulatory baselines can shift within election cycles. That
mismatch complicates planning for everyone: agencies, landowners, Tribes, conservationists, and the
species themselves.
A more resilient approach would not treat habitat protection and economic certainty as
opposites. It would set stable legal baselines while expanding flexible, place-based implementation. That
means protecting essential habitat, especially climate refuges, migration corridors, wetlands, rivers,
seagrass beds, and warm-water refuges. It also means using incentives, conservation finance, Tribal co-
management, and local partnerships to make compliance more workable.
The ESA should function less like a recurring partisan battlefield and more like a platform for
coordinated adaptation. Federal protections remain essential because local politics and market
incentives often undervalue biodiversity. But implementation should be collaborative enough to earn
trust and durable enough to survive political turnover.
The manatee is a warning. If the law protects animals but not the conditions that keep them
alive, resilience becomes symbolic. A starving manatee, a salmon stream without salmon, or a forest
cleared of nesting habitat all expose the same flaw: survival depends on place.
In a fractured climate future, the strongest conservation laws will be those that can absorb
political conflict without abandoning ecological reality. The ESA’s future depends on whether
policymakers and courts can build that kind of resilience. Protecting species means protecting habitat.
Without that foundation, the promise of recovery becomes much harder to keep.
Chicago-Style Source List
Anderson, Danielle. “Save the Manatee Club Opposes Federal Endangered Species Act Rule Change,
Warns of Habitat Risks.” Flagler News Weekly, July 15, 2026.
Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995).
Daniel, Ari. “Environmental Groups Sue Government to Stop a Big Change to the Endangered Species
Act.” NPR, July 14, 2026.
Earthjustice. “Lawsuit Seeks to Protect America’s Wildlife From Trump Administration.” July 14, 2026.
Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024).
U.S. Fish and Wildlife Service. “Endangered Species Act Regulation Revisions.” Accessed July 15, 2026.
https://www.fws.gov/project/endangered-species-act-regulation-revisions.
U.S. Fish and Wildlife Service. “Frequently Asked Questions: Revised Endangered Species Act
Regulations.” June 13, 2024. https://www.fws.gov/sites/default/files/documents/2024-06/frequently-
asked-questions-revised-endangered-species-act-regulations-2024-06-13.pdf.
U.S. Fish and Wildlife Service and National Marine Fisheries Service. “Rescinding the Definition of ‘Harm’
Under the Endangered Species Act.” Federal Register, April 17, 2025.
https://www.federalregister.gov/documents/2025/04/17/2025-06746/rescinding-the-definition-of-
harm-under-the-endangered-species-act.