Tribes and Environmental Groups Push Back on Trump Rule to Diminish Habitat Protections for Endangered Species

Environmental groups and tribes are suing the Trump administration over a new rule eliminating the majority of habitat protections for imperiled wildlife protected by the Endangered Species Act. 

Experts say the rule represents the most profound change to the law since it was first enacted in 1973, paving the way for more development and industrial activities that will likely harm vulnerable animals and plants. It’s the latest in a series of moves by the Trump administration to weaken the Endangered Species Act in ways that will benefit politically powerful industries like oil and gas. 

First proposed in April, the finalized rule will rescind the law’s longstanding regulatory interpretation of “harm,” which is defined as any significant habitat modification or degradation that kills or injures wildlife. The administration said in a press release last week that the law’s core protections remain “firmly in place,” but that rescinding the harm definition will “reduce unnecessary permitting, cut compliance costs, and eliminate confusion for landowners, small businesses, energy producers, farmers, ranchers and local governments.”

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

A coalition of nine environmental groups and two Washington tribes filed separate lawsuits this week contesting the decision. They argue that rescinding the harm rule is prohibited by the ESA’s statutory language and defies the core goal of the law, given that habitat loss is the primary driver of extinction. 

“It’s so intuitive, and it’s also the law that endangered species need to have habitat, or they can’t survive,” said Ben Levitan, a senior attorney at the nonprofit Earthjustice, which filed one of the lawsuits alongside the Center for Biological Diversity, Oregon Wild, the Sierra Club and several other nonprofits. “The Trump administration is pretending like that requirement just doesn’t exist. So we’re trying to enforce that law and make sure that the Trump administration enforces it too.”

Small Change, Big Impacts

The ESA prohibits the “take” of an endangered species, which includes actions “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” Historically, the “harm” part of this mandate encompasses “any activity that can modify a species’ habitat.” 

This statute has been the “single most important tool for protecting habitat on non-federal land,” according to Pat Parenteau, an emeritus professor at Vermont Law and Graduate School. More than two-thirds of species listed under the Endangered Species Act depend at least in part on private lands, with 10 percent residing only on such property. 

A 2019 study found that 81 percent of the species listed under the ESA from 1975 to 2017 were threatened or endangered due to habitat loss and degradation, as opposed to direct causes such as hunting. That includes the desert tortoise and the ivory-billed woodpecker. 

Rather than blocking projects altogether, the “harm” rule has typically required companies to adjust operations to minimize their impact on endangered species, Parenteau said. That could mean adjusting the timing of construction to avoid disrupting a listed bird species’ breeding season or moving a road project so it won’t cut off grizzly bears’ access to habitat and food. 

But the provision can be a thorn in the side of industries that often overlap with wildlife habitat, said Dave Owen, an environmental law professor at the University of California College of the Law, San Francisco. He published a 2012 study that found the majority of habitat protections offered by the ESA fall under the harm definition.

“Protecting species is in large part about protecting habitat, and avoiding habitat modification that causes harm has been a big part of how the Endangered Species Act provides those protections,” he said. “For many years, regulated industries have complained about that.”

This tension came to a head in 1995 amid a legal dispute over forests that timber interests wanted to cut down but that overlapped with the habitat of vulnerable northern spotted owls and red-cockaded woodpeckers. The Supreme Court maintained the harm definition, ruling in favor of the species’ protection. 

But the Trump administration argues that this interpretation was an “unlawful regulatory intrusion that interfered with private property rights,” according to the July 10 press release. 

The April proposal to rescind the definition triggered a wave of backlash from conservationists and the public. Approximately 358,000 public comments were filed on the proposed rule, many condemning the action as extinction fodder. Others supported the change, which they said would reduce regulatory hurdles for landowners and industry. The Forest Landowners Association submitted a comment in May that the change would “create efficiencies for the regulated community and align the statutory interpretation of ‘take’ more closely with Congress’s original intent.” 

Legal Battles

The rule will go into effect on Sept. 14. But a coalition of tribes and environmental groups hope to overturn it. Several cases have been filed so far, including a lawsuit spearheaded by the Swinomish Indian Tribal Community and Squaxin Island Tribe in the U.S. District Court for Western Washington. 

The Swinomish Tribe submitted thousands of pages of scientific literature during the public comment period that its leaders say shows the importance of habitat protection for endangered species such as the culturally important—and vulnerable—salmon that swim in their waters. 

“This rule will worsen salmon habitat conditions and without question that will reduce salmon stocks,” Tandy Wilbur, a Swinomish senator and fisheries manager, said in a statement. “Because salmon is both food and spiritual nourishment for Swinomish Community members, I fear for the health of our people and our cultural lifeways.” 

The Trump administration did not answer questions from Inside Climate News about these legal actions or how the federal government will provide habitat protection for threatened and endangered species after rescinding the harm definition. 

Every species protected by the ESA could be hurt by the rule change, experts warn. 

“If you’re taking away the most important tool under the Endangered Species Act to protect most of the habitat that the species need to survive, they won’t,” said Parenteau. Without the harm rule, species already struggling with myriad threats from human activities will be further exposed, he explained: “The manatees starve because the water’s polluted. The salmon can’t spawn because the waters are sedimented and too hot.” 

Since President Donald Trump regained office, his administration has hammered away at the ESA in pursuit of “energy dominance” and more widespread development. Other proposed changes aim to reduce the number of species afforded the highest level of protection under the law and agencies’ ability to protect species against rapid global warming. In March, a rarely tapped panel of high-level officials nicknamed the “God Squad” agreed to exempt federally regulated oil and gas activities in the Gulf of Mexico from complying with the ESA, which environmental groups challenging the action in court say could drive rare species such as the Rice’s whale to extinction. 

The harm rule change could eventually end up before the Supreme Court, as it did in 1995. But Owen said this may backfire on the plaintiffs because the court, far more conservative now than it was a generation ago, could enshrine the change in a “much more lasting way than would happen just through a regulatory amendment alone.”

Asked about this, Earthjustice’s Levitan said the law and science are “on our side.”