Proposed Rule Relies on Loper Bright to Rescind Endangered Species Act “Harm” Regulations

The Departments of the Interior and Commerce have proposed to rescind an Endangered Species Act rule defining “harm” because it “do[es] not accord with the single, best meaning of the statutory text” and instead they will “rest on the statutory definition of ‘take.'”

This proposal is in line with a White House directive to remedy existing overbroad and unlawful regulations, as I discussed here. But the rescission does not invoke the APA’s good cause exception to expediate repeal, as my colleague discussed here, and instead invites public comment.

Background from the notice of proposed rulemaking:

The Endangered Species Act (ESA) prohibits the “take” of endangered species. Under the ESA, “[t]he term ‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” This makes sense in light of the well-established, centuries-old understanding of “take” as meaning to kill or capture a wild animal. Regulations previously promulgated by FWS expanded the ESA’s reach in ways that do not reflect the best reading of the statute, to prohibit actions that impair the habitat of protected species: “Harm in the definition of ‘take’ in the Act means an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” NMFS’ definition is materially identical: “Harm in the definition of ‘take’ in the Act means an act which actually kills or injures fish or wildlife. Such an act may include significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.”

In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995), the Supreme Court upheld FWS’ regulation under Chevron deference. Justice Scalia dissented, joined by Chief Justice Rehnquist and Justice Thomas, and would have held that even under Chevron this interpretation was unsustainable. As Justice Scalia observed, “[i]f ‘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.” In addition, under the noscitur a sociis canon, the definition of “harm,” like the other nine verbs in the definition, should be construed to require an “affirmative act[] … directed immediately and intentionally against a particular animal—not [an] act[] or omission[] that indirectly and accidentally cause[s] injury to a population of animals.”

The Supreme Court, nearly 30 years after Sweet Home, overruled the Chevron doctrine in Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 400 (2024). Under Loper Bright, “the question that matters” is whether “the statute authorizes the challenged agency action.” In other words, does the agency’s regulation match the single, best meaning of the statute?     

We have concluded that our existing regulations, which still contain the definition of “harm” contested in Sweet Home, do not match the single, best meaning of the statute. As Justice Scalia’s dissent in Sweet Home explains, the regulations’ interpretation of the statutory language violates the noscitur a sociis canon, did not properly account for over a thousand years of history, and is inconsistent with the structure of the ESA. Nor is any replacement definition needed. The ESA itself defines “take,” and further elaborating on one subcomponent of that definition—“harm”—is unnecessary in light of the comprehensive statutory definition.

We recognize that the Supreme Court held in Loper Bright that its “prior cases that relied on the Chevron framework … are still subject to statutory stare decisis.”  But under the then prevailing Chevron framework, Sweet Home held only that the existing regulation is a permissible reading of the ESA, not the only possible such reading. Our rescission of the regulation definition on the ground that it does not reflect the best reading of the statutory text thus would not only effectuate the Executive Branch’s obligation to “take Care that the Laws be faithfully executed,” but would also be fully consistent with Sweet Home.

Accordingly, because our regulations do not accord with the single, best meaning of the statutory text, we propose to rescind the regulatory definition of “harm” and rest on the statutory definition of “take.” This revision would be prospective only and would not affect permits that have been granted as of the date the regulation becomes final.