They Just Dismantled the Endangered Species Act

The word “harm” once protected America's rarest wildlife. Now it’s been erased. Here’s how the court fight will play out and what you can do to help save the law.

On April 17, the Trump administration fired the starting gun on what may become one of the most devastating environmental rollbacks in U.S. history. They’ve proposed a rule to redefine "harm" under the Endangered Species Act (ESA). That seemingly simple word is what determines whether habitat destruction counts as illegal activity.

Under this proposed rule, destroying the habitat of an endangered animal would no longer qualify as "harm" unless someone physically injures or kills the animal directly. Bulldozing nesting grounds, logging migration corridors, draining wetlands where endangered frogs breed, none of it would count. This guts the very mechanism that has protected species like the red wolf, grizzly bear, and countless others from oblivion.

This isn’t a new idea. The Supreme Court already ruled on this issue 30 years ago. In Babbitt v. Sweet Home (1995), the Court upheld the interpretation that "harm" includes significant habitat modification. That ruling has anchored endangered species protections ever since.

The Trump administration is now trying to sidestep that precedent through regulatory sleight of hand. They’re also confident the Supreme Court will side with them.

Why the Urgency Now?

This isn't happening on a normal timeline. The Trump administration fast-tracked the rule, with only a 30-day public comment period ending May 17, 2025. They’re aiming to finalize the rule by late June or July.

This compressed schedule signals their intent: ram the rule through, trigger litigation, and try to get a favorable ruling before the next presidential election.

The Legal Battlefield: California vs. Texas

The moment the rule is finalized, environmental groups will file lawsuits. Expect Earthjustice, the Center for Biological Diversity, and others to file in California’s Ninth Circuit to seek a nationwide injunction blocking the rule. Meanwhile, industry groups and red-state attorneys general (like Texas) will file in the Fifth Circuit to defend the rule or push it further.

This sets up a likely circuit split, where the Ninth Circuit rules one way and the Fifth Circuit another, almost guaranteeing Supreme Court involvement.

The Supreme Court Risk

Under normal conditions, this rule would stand no chance. It flatly contradicts Sweet Home and the ESA's text. But this is not a normal Court.

Today's 6-3 conservative Supreme Court majority has shown deep hostility toward environmental regulation, as evidenced by its decision in West Virginia v. EPA. It’s increasingly embraced the "major questions doctrine" to rein in agency authority, demanding clear congressional authorization for broad regulatory actions. And it’s demonstrated a willingness to overturn longstanding precedent when it serves ideological aims, signaling very real danger for the future of the Endangered Species Act.

Critically: If this Court upholds the Trump rule, it won't just weaken the Endangered Species Act, it will obliterate its ability to function in any meaningful way. Habitat destruction, which is the leading cause of animal extinction globally, would be legalized under federal law. This wouldn’t be a setback. It would be a death blow to one of the most important conservation achievements in world history, and the consequences would echo for generations.

Is There a Way to Stop This?

Yes, but it hinges on smart legal maneuvering, time, and some luck.

Environmental groups have to immediately file for a nationwide injunction when the final rule is published. They need to make the case fact-heavy and complex to slow litigation, oppose efforts to expedite appeals, and fight venue transfers to keep the case in the Ninth Circuit or D.C. Circuit. The goal is to delay final Supreme Court review until after the 2028 election.

If they succeed, and a new, non-crazy administration takes office in January 2029, the Trump rule can be withdrawn, and the Supreme Court case mooted before they're given a chance to rule and irreversible damage is done.

How This Could Still Go the Other Way

Even with a split between the Ninth and Fifth Circuits, the outcome isn't inevitable. Timing will be everything.

If environmental groups succeed in securing a nationwide injunction early on, it could freeze the Trump rule before it takes effect, keeping the old definition of "harm" in place while litigation drags out. If the Ninth Circuit moves faster than the Fifth and issues a strong ruling striking down the rule, it could create momentum against Trump’s interpretation, even if the Fifth Circuit later upholds it.

However, if the Fifth Circuit is first to issue a ruling upholding the Trump rule, and the Ninth Circuit delays or issues a narrower decision, it could embolden the administration to enforce the rule in red states, even under legal cloud, and rush the issue up to the Supreme Court.

Timing-wise, this could mean:

• If lawsuits are filed immediately after the rule is finalized (likely late June or July 2025), district court rulings could come down by early 2026.

• Appeals to the circuit courts could be underway by mid to late 2026.

• A split between the circuits could materialize by late 2026 or early 2027.

• The Supreme Court could take the case for the 2027 term, with a decision likely by summer 2028, right before the next presidential election.

In short: if the legal fight moves too quickly, the Trump rule could be blessed by the Supreme Court before voters have a chance to change course. If environmental groups can keep the case moving slowly, there's still hope for a political rescue.

Timeline to Watch

April 17, 2025: Proposed rule published

May 17, 2025: Comment period closes

June/July 2025: Final rule likely issued

Summer/Fall 2025: Lawsuits filed and injunction battles begin

2026–2028: Appeals wind through the courts

2028 Election: Critical turning point

Why Making Your Public Comment Matters

Let me be clear: this administration will ignore the public comments. They have no real intention of listening to opposition or adjusting their rule based on public input. Their goal is to rush this through as quickly as possible.

But your comment still matters a lot.

Every public comment submitted builds the evidentiary record that environmental groups and state attorneys general will use in court. When lawsuits are filed to overturn this rule, one of the most powerful arguments will be that the administration acted “arbitrarily and capriciously” by ignoring widespread opposition, expert warnings, and factual evidence submitted during the public comment process.

Judges look closely at the record. They look at whether agencies considered the evidence before them. They look at whether concerns were brushed aside without reason. They look for procedural violations, not just ideological ones.

By flooding the record with strong, substantive objections, we give environmental lawyers the ammunition they need to show the courts, clearly and unambiguously, that this rule was a political hit job, not a lawful exercise of agency judgment.

Even if this administration will not listen, some courts will. And that could make all the difference here.

The Stakes

This isn’t just another policy fight. It’s a direct attempt to dismantle America's ability to protect its most vulnerable species. If habitat destruction is no longer illegal, countless animals and plants will be doomed to extinction, not by neglect, but by design.

The Trump administration knows the stakes. The courts know the stakes. And now, so do you.

Our native wildlife, the animals, birds, fish, and plants that make up the living fabric of this country, can't defend themselves in court. They can't tell a judge why they should have the right to live. But we can. And we owe it to future generations of Americans to fight. To say we stepped into the breach and did what we could to stop the needless destruction of our natural heritage.

History is watching us.

Sample Public Comment

If you're pressed for time but want to make your voice heard, I’ve gone ahead and consulted with experts on a draft response that provides the legal ammunition needed to help stop this proposed rulemaking. Feel free to copy, paste, and submit this as your public comment. Here’s the link to comment on the rule.

Update: The below sample comment has been updated to ensure it’s within the character limit and can be submitted easily. Thanks commenters!

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RE: Docket No. FWS-HQ-ES-2025-0034

I write in strong opposition to the proposed rule to rescind the regulatory definition of "harm" under the Endangered Species Act (ESA). This proposed rescission is legally flawed, scientifically indefensible, and directly contravenes the statutory purpose of the ESA.

The Endangered Species Act defines "take" to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect." 16 U.S.C. 1532(19). As the Supreme Court recognized in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995), "harm" within this list naturally encompasses indirect actions, such as habitat destruction, that cause death or injury to protected species. The Court upheld the regulatory interpretation that defines "harm" as including "an act which actually kills or injures wildlife, including significant habitat modification or degradation which actually kills or injures wildlife."

The Court's decision was not based merely on deference under Chevron; it engaged in direct statutory interpretation, finding that the plain meaning of "harm," read in the context of the ESA's broad remedial purpose, supports the existing regulatory definition. The majority expressly rejected attempts to narrow the term "harm" through interpretive canons like noscitur a sociis, explaining that the ESA's language and goals demanded a broad reading to prevent extinction.

The agencies' reliance on Justice Scalia's dissent in Sweet Home is misplaced. The dissent is not the law. The Supreme Court majority considered and rejected the argument that "take" must be limited to direct, affirmative acts such as hunting or trapping. The majority also specifically addressed and rejected the noscitur a sociis argument, finding that the term "harm" is naturally broader and that the ESA's conservation purpose compels a broader interpretation. By proposing to relitigate these same points, the agencies improperly disregard binding precedent and undermine decades of legal and practical reliance on the current regulatory framework.

It is a matter of scientific consensus that habitat loss is the leading cause of species extinction globally. Major biodiversity assessments, including those conducted by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES), have identified habitat destruction as the primary driver of endangerment and extinction across taxa. Excluding habitat destruction from the scope of "harm" is a policy choice that strips endangered species of protection against their most immediate and pervasive threat. Such a choice defies biological reality and abdicates the agencies' statutory responsibility to conserve species and the ecosystems upon which they depend.

The Endangered Species Act's stated purpose is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved" and "to provide a program for the conservation of such endangered species and threatened species." 16 U.S.C. 1531(b).

By narrowing the scope of "harm" to exclude habitat destruction, the agencies would gut the ESA's ability to function as intended. The proposal treats the destruction of habitat, the very lifeblood of endangered species, as irrelevant unless a human actor directly strikes an animal. This interpretation would allow massive and predictable species loss while claiming formal compliance with the law, a result that Congress clearly did not intend.

No interpretation that so plainly frustrates the ESA's overarching purpose can be considered the "single best reading" under Loper Bright or any faithful approach to statutory construction.

The existing definition of "harm" has been in place for nearly 30 years. Federal, state, tribal, and private conservation programs have relied extensively on it. Courts and agencies have applied it to habitat protection plans, Section 7 consultations, and incidental take permits nationwide.

The agencies' assertion that these reliance interests must give way to a presidential duty to "faithfully execute" the laws is not legally sufficient. Under Department of Homeland Security v. Regents of the University of California, 591 U.S. 1 (2020), agencies must meaningfully assess reliance interests when changing settled policy, especially where life-and-death consequences are involved. The proposed rule barely acknowledges these interests and offers no substantive analysis of their weight.

The proposed rescission of the regulatory definition of "harm" is contrary to law, contrary to science, contrary to the clear structure and purpose of the ESA, and contrary to settled judicial precedent. It would gravely endanger countless species already on the brink of extinction. I urge the agencies to withdraw the proposed rule in its entirety and to retain the existing, lawful, and scientifically grounded definition of "harm" under the Endangered Species Act.

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