Overview
Title
Rescinding the Definition of “Harm” Under the Endangered Species Act
Agencies
ELI5 AI
The government wants to change a rule about how they protect animals in danger of disappearing, by taking away a part of the rule that talks about harming them by changing their homes. They are asking people what they think about this idea until mid-May 2025.
Summary AI
The U.S. Fish and Wildlife Service and the National Marine Fisheries Service are proposing to remove the definition of "harm" from the Endangered Species Act regulations. This decision follows a Supreme Court ruling in Loper Bright Enterprises v. Raimondo that requires agency regulations to align with the best reading of the statute. The existing definition, which includes habitat modification, is seen as incompatible with the true meaning of "take" under the Act. Public comments on this proposed change are welcomed until May 19, 2025.
Abstract
The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively referred to as the Services or we) are proposing to rescind the regulatory definition of "harm" in our Endangered Species Act (ESA or the Act) regulations. The existing regulatory definition of "harm," which includes habitat modification, runs contrary to the best meaning of the statutory term "take." We are undertaking this change to adhere to the single, best meaning of the ESA.
Keywords AI
Sources
AnalysisAI
The document in question is a proposed rule by the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) aimed at removing the definition of "harm" from the regulations under the Endangered Species Act (ESA). This proposal is driven by a need to align agency regulations with a more precise interpretation of the statutory term "take," as required by a recent Supreme Court decision. Public input on this proposed change is open until May 19, 2025, reflecting a standard practice of seeking community and stakeholder engagement before implementing significant regulatory changes.
General Summary
The ESA is a critical piece of legislation designed to protect endangered species from activities that may harm them, including direct capture or killing. Historically, the term "harm" has been interpreted to include habitat modifications that could indirectly endanger wildlife. However, this new proposal suggests that including habitat modification under "harm" does not align with the best reading of the law. Instead, the proposal seeks to focus on maintaining a strict interpretation centered around direct actions like killing or capturing. This shift is influenced by a Supreme Court ruling, which demands that agency rules strictly adhere to the best interpretation of statutory texts without broad or expanded readings.
Significant Issues and Concerns
One of the main issues with this proposed rule is potential confusion over what constitutes "take" under the ESA once the specific definition of "harm" is rescinded. Without providing a new, clearer guidance framework, the proposal might lead to varied interpretations, potentially affecting wildlife protection.
The proposal heavily relies on legal definitions and historical interpretations that could be challenging for people outside legal expertise to comprehend deeply. This reliance on high-level legal discourse, referencing cases like Loper Bright Enterprises v. Raimondo and doctrines like "Chevron deference," may exclude broader public understanding and thus engagement.
Impact on the Public
Broadly, the removal of the habitat modification aspect from the definition of "harm" could have substantial implications for environmental protections. It may result in less regulatory oversight of activities affecting habitats, potentially putting endangered species at greater risk. While this aligns with a more limited reading of "take," the absence of further guidance might not sufficiently consider indirect threats from habitat changes, which play a pivotal role in species survival.
Impact on Specific Stakeholders
This proposed change may have variable impacts depending on stakeholder perspectives. Environmental groups and conservationists might view this change unfavorably as it could weaken longstanding protections for endangered species through reduced emphasis on habitat preservation. They might argue that indirect actions, like habitat degradation, should continue to be recognized as harmful due to their cumulative impacts on species viability.
On the other hand, property developers and some business entities might welcome this deregulatory approach. By narrowing the definition of "take," these stakeholders could experience fewer regulatory restrictions and potentially reduced costs when engaging in activities that might otherwise have been constrained by previous definitions of "harm."
Additionally, this document raises concerns regarding economic impacts on small entities but provides limited data to illustrate what these might entail. The potential economic relief anticipated for small businesses could be significant, but further analysis and clarity are necessary to validate these claims.
Conclusion
In summary, while the proposed rule simplification might seem beneficial from a regulatory perspective, it brings with it uncertainties and challenges, especially concerning ecological impacts and legal clarity. The public and stakeholders have an opportunity to voice their concerns or support, which is a crucial component of the democratic process in shaping environmental policy. However, without clear guidance or alternatives, the rescission of the definition of "harm" may lead to broader implications for endangered species protection.
Issues
• The proposed rule to rescind the definition of 'harm' under the Endangered Species Act (ESA) could lead to confusion or misinterpretation without clear guidance on how 'take' should be applied moving forward, potentially affecting the protection of endangered species.
• The justification for rescinding the definition relies heavily on legal interpretations and historical context, which may be challenging for non-experts to fully understand or critique, making public engagement difficult.
• The document references complex legal cases and doctrines (such as 'Chevron deference' and 'noscitur a sociis') without providing simplified explanations, which could hinder the understanding of stakeholders not familiar with legal terminology.
• The document contains dense legal and bureaucratic language that may be difficult for the general public to interpret, especially in sections discussing regulatory flexibility and NEPA compliance.
• Potential economic impacts on small entities are vaguely described as possibly significant, yet no concrete data or examples are provided to clarify what these impacts might entail.
• Reliance interests are addressed, but the document acknowledges uncertainty in balancing these interests with constitutional duties, suggesting potential disputes or challenges upon implementation.
• The National Environmental Policy Act (NEPA) analysis is still in progress, and the document invites comments on the scope of environmental impacts, indicating incomplete consideration of ecological consequences.