The FWS and NMFS were never meant to have this sweeping authority to regulate private lands, as they did with the rescinded harm definition.
For decades, the federal government’s misinterpretation of a single word (“harm”) in the Endangered Species Act (ESA) has had severe effects on private property owners, project development, and species recovery.
Fortunately, on July 14, the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) published a final rule to fix this long-standing problem by rescinding the regulatory definition for the word “harm.”
The purpose of the ESA is to conserve endangered and threatened animal and plant species. In simple terms, under the statute, endangered species are those species that are in danger of extinction, whereas threatened species are those likely to become endangered.
The decision to list a species as “threatened” or “endangered” under the ESA triggers a host of regulations aimed at recovering that species to the point where it can be delisted.
One of the most direct ways that the ESA regulates property owners is by prohibiting the “take” of endangered species. The statute defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” After the ESA became law, the FWS and NMFS chose an expansive regulatory definition for the verb “harm,” found within the definition of “take,” to include actions that pose potential indirect effects on listed species through habitat modification.
Such a broad interpretation meant that even normal activities could be restricted if they might incidentally affect species. As the Pacific Legal Foundation aptly stated, “In broadly defining ‘harm’ to include habitat modification that might incidentally or accidentally affect ESA-listed species, the Services have expanded their authority to regulate ‘take’ to reach all manner of ordinary land-use activities on private lands.”
The agencies’ new final rule, which rescinds the definition of harm, will not only benefit property owners but also create better incentives for people to participate in species conservation.
Under the rescinded “harm” definition, modification of habitat constituted a “taking” of a species for which the penalties for landowners could be severe, including potential imprisonment. So, when private property was deemed habitat for an endangered species, modification of that land could qualify as such a “taking.” This meant that, if they wanted to avoid running afoul of the law, some unlucky property owners found themselves subject to the government deciding what actions were allowed on their own property, to a remarkably intrusive degree. Not only was this policy bad for property owners, it undermined the goal of fostering habitat. It incentivized property owners to intentionally destroy existing habitat on their property that might trigger regulation. Of course, intentional destruction of habitat does not help species conservation.
Further, it meant that someone who would otherwise manage their property with the aim of creating habitat for an endangered species may decide against it because of the threat of overly burdensome regulation.
Compounding the problem, habitat modification or degradation has been the most prevalent form of “take” regulated by the agencies. It followed that agencies had to devote significant time and resources to regulating actions that had an indirect effect on species covered by the take prohibition, even if those resources could be used to conserve them in a more direct, effective way. Perhaps a better use of those resources would be to reward, not punish, property owners for managing endangered species’ habitat.
There are also significant legal problems with the agencies’ now-rescinded harm definition. It was inconsistent with the plain language of the ESA and the intent of Congress.
Each of the verbs Congress listed in the “take” definition (hunt, shoot, wound, etc.) describe direct, affirmative acts toward an individual member of a species. Logically, the term “harm” should be interpreted just like the other verbs — as a direct, affirmative act toward an individual member of a species. After all, one of the core canons of statutory interpretation is that a word is given its meaning from its surrounding, associated words.
Further, Congress expressly regulated actions that modify critical habitat in a separate section of the ESA (Section 7). If Congress wanted habitat modification to be included as a form of “take,” it would have said so directly, as it did in Section 7. Regardless, actions that modify habitats are still addressed in the statute and independently of how the term “harm” is defined.
Beyond the plain language, the concept of take is deeply rooted in statutory and common law concerning wildlife. As Justice Antonin Scalia observed, “If ‘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.”
The rescission of the “harm” definition is long overdue. Unsurprisingly, some environmental groups have already filed a lawsuit challenging the rule. Hopefully, the rule will survive judicial scrutiny, and it rightly should.
The FWS and NMFS were never meant to have this sweeping authority to regulate private lands, as they did with the rescinded harm definition. This new final rule will return implementation of the law to the plain language of the statute, while respecting property rights and creating better incentives for species conservation.
Jacob Tomasulo is a policy analyst at the Competitive Enterprise Institute. Austin Gae is a policy analyst at Advancing American Freedom’s Plymouth Institute for Free Enterprise.