Reform the Endangered Species Act!

The Endangered Species Act today serves the anti-capitalist gadflies of the Left far better than it protects wildlife.  Read CFACT’s official submission focusing on reforming the definition of “harm.”

by Bonner Cohen, Ph.D.

Public Comments Processing

Attn: FWS-HQ-ES 2025-0034

U.S. Fish and Wildlife Service

MS: PRB/3W

5275 Leesburg Pike

Falls Church, VA 22041-3803

RE: Proposal to Rescind the Regulatory Definition of “Harm” in Endangered Species Act Regulations

May 19, 2025

Attention Reviewing Team,

The Committee for a Constructive Tomorrow (CFACT) is a 501 (c) (3) nonprofit organization founded in 1985 that focuses on free-market solutions to environmental and natural resources-related issues. CFACT appreciates the opportunity to submit public comments on the proposal of the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) to rescind the regulatory definition of “harm” in Endangered Species Act (ESA) regulations.

Background and Position

We support the FWS/NMFS proposed rulemaking that would rescind the regulatory definition of “harm” under regulations supporting the ESA. As the proposal points out, the current regulatory definition dates to Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995). That ruling upheld the FWS’s regulatory definition of “harm” under the broader category of “take” – as in to “take” a species — under the ESA. As a legal term, “take” has a centuries’- old pedigree, which — in the context of the ESA – means to “kill” or “capture” a wild animal. “Harm” in the definition of “take” would thus mean the killing or injuring of wildlife. Like the other nine verbs defining “take” in the text of the ESA – harass, pursue, hunt, shoot, wound, kill, trap, capture, and collect – “harm” refers to a conscious act, undertaken willfully for the express purpose of taking a species.

However, under the current, expanded definition of “harm,” as upheld in the Sweet Home decision, the ESA’s reach has expanded far beyond what the statute’s text lays out. In the 1995 Sweet Home case, several parties sued then-Interior Secretary Bruce Babbitt’s characterization of “harm” as including “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns.” ¹ Even though the plaintiffs pointed out that Congress, in writing the 1973 ESA, made no reference to “significant habitat modification or degradation,” the Supreme Court ruled in favor of Secretary Babbitt under the 1984 legal precedent of Chevron deference, that is, “deference to an agency’s reasonable interpretation of an ambiguous statute.” ² Chevron deference, however, was overturned by the U.S. Supreme Court last year in Roper Bright Enterprises v. Raimondo.

A regulatory definition based on a legal doctrine that has since been overturned by the Supreme Court is a regulatory definition crying out for elimination.

“This definition has proven problematic for energy producers, agriculturalists, and foresters whose privately owned land may include suitable habitat for endangered or threatened species, even though the species itself may not actually be found there,” notes Jennifer Friedel in a commentary for Southern Ag Today. ³

“An extreme example of this came to a head in 2001, when owners of a Louisiana tree farm brought suit against FWS for designating 1,500 acres of a privately owned farm as critical habitat under the ESA because two historical breeding sites for the protected Mississippi gopher frog were located there, even though the frog had not been observed there in nearly 40 years,” she pointed out.

Toward a Better Way to Recover Species

It is also not necessary to replace the regulatory definition of “harm” with anything else. The definition of “take” in the ESA more than suffices to protect threatened and endangered species. The standard by which the effectiveness of the ESA should be judged is recovery of species at risk. This can best be achieved by cooperative arrangements between FWS/NMFS and landowners and other businesses whose location overlap the habitat of endangered species. The current, expanded definition of “harm” can turn farmers, ranchers, fishermen, and others against species, because their livelihoods may be put at risk by ESA-related restrictions.

Cooperation, not confrontation, is the way to bring about species recovery. Eliminating “harm” from the definition of “take” will remove one of the perverse incentives that has made implementation of the ESA so problematic and contributed to the statute’s poor record of recovering species. In 2023 – 50 years after enactment of the ESA – wildlife researcher Rob Gordon pointed out that “of 1,667 threatened or endangered species, there are only 62 officially ‘recovered’ species. Of these, 36 – nearing 60% — are not real conservation ‘success stories.’ These ’recoveries’ are hollow, as they are inaccurate proclamations attributable to an erroneous original determination that the species was endangered or threatened.” ⁴

This poor record of performance shows why the ESA, and its supporting regulations, need to be updated. Eliminating the counterproductive definition of “harm” altogether is one way the statute can be made to better serve both species and humans.

Thank you very much.

Bonner Russell Cohen, Ph. D.

Senior Policy Analyst

Committee for a Constructive Tomorrow

Washington, D.C.