Justice Department Files Motions Defending a Rule Rescinding the Regulatory Definitions of “Harm” As It Relates to the Endangered Species Act

The Justice Department’s Energy and Natural Resources Division (ENRD) yesterday filed motions for summary judgment in four cases defending challenges to a rule rescinding the regulatory definition of “harm” in U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) regulations implementing the Endangered Species Act (ESA). These cases, in the Northern District of California and the District of South Carolina, are the first in a series of similar challenges across the country to reach this stage of litigation.

“Regulatory overreach burdens American families and businesses, and these now-rescinded Endangered Species Act regulations are a prime example,” said Principal Deputy Assistant Attorney General Adam Gustafson of ENRD. “The Department of Justice will continue vigorously defending President Trump’s efforts to uphold the Act as written and protect economic growth.”

According to the filings, what is at issue in all four cases is whether the ESA’s restriction on “take” of listed species requires an intentional, purposeful act directed against a particular animal. In the ESA, Congress defined “take” to include 10 verbs centered on intentional actions against individual animals, like hunt, shoot, wound, kill, and trap. But the FWS and NMFS interpreted one of those verbs, “harm,” in a way that allowed them to regulate actions that modify a species’ habitat.