Proposed changes to the Endangered Species Act face an uncertain future – Investigate Midwest

Report on Proposed Changes to the Endangered Species Act Definition of “Harm” and Implications for Sustainable Development Goals

Introduction

In April 2025, the U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) published a significant proposal in the Federal Register to rescind the regulatory definition of “harm” under the Endangered Species Act (ESA). This proposed regulatory change has profound implications for environmental protection and aligns closely with several United Nations Sustainable Development Goals (SDGs), particularly SDG 15 (Life on Land) and SDG 14 (Life Below Water).

Background on the Endangered Species Act and Definition of “Harm”

The ESA prohibits the “take” of any protected species, where “take” is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt any such conduct. The current U.S. Code of Federal Regulations defines “harm” within “take” as acts that actually kill or injure wildlife, including significant habitat modification or degradation that impairs essential behavioral patterns such as breeding, feeding, or sheltering.

Proposed Regulatory Change

The FWS and NOAA propose to eliminate “harm” from the ESA’s definition of “take,” thereby excluding “significant habitat modification” as a form of harm. This change is argued by the agencies to better reflect the “single, best meaning” of the statutory term “take.”

Implications for Environmental Protection and SDGs

• Impact on Biodiversity (SDG 15): Removing habitat modification from the definition of harm could weaken protections for endangered species by allowing habitat destruction without legal consequences, undermining efforts to conserve terrestrial ecosystems and biodiversity.
• Impact on Aquatic Life (SDG 14): Habitat degradation in aquatic environments, such as rivers and wetlands, may no longer be considered harm, threatening aquatic species and ecosystem health.
• Industrial Development vs. Conservation: The proposed change may facilitate easier permitting for industries such as gas, timber, and oil, potentially increasing environmental degradation and conflicting with SDG 12 (Responsible Consumption and Production) and SDG 13 (Climate Action).

Legal and Historical Context

The proposed change reverses a nearly three-decade-old legal precedent set by the U.S. Supreme Court in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995). In this case, the Court upheld the inclusion of habitat modification as “harm” under the ESA, applying the Chevron doctrine which grants deference to reasonable agency interpretations of ambiguous statutory terms.

Key Legal Precedents

1. Chevron Doctrine: Established that courts should defer to reasonable agency interpretations of statutes when congressional intent is ambiguous.
2. Babbitt v. Sweet Home: Affirmed that “harm” includes significant habitat modification that injures wildlife, supporting strong habitat protections under the ESA.

Arguments Presented by the Fish and Wildlife Service

• The existing regulatory definition of “harm” including habitat modification is claimed to contradict the best interpretation of “take.”
• The agency cites Justice Antonin Scalia’s dissent in Babbitt, arguing that “take” should be limited to direct killing or capturing of animals, excluding indirect habitat impacts.

Public Response and Future Outlook

The FWS provided only a one-month public comment period, receiving over 375,000 responses, indicating high public engagement and concern. Should the proposal be finalized, it is expected to trigger extensive litigation, potentially affecting the enforcement of ESA protections for years.

Conclusion and Relevance to Sustainable Development Goals

The proposed elimination of “harm” from the ESA’s definition of “take” represents a critical shift in U.S. environmental policy with significant consequences for biodiversity conservation and ecosystem health. This regulatory change challenges the achievement of multiple SDGs, including:

• SDG 15: Protecting terrestrial ecosystems and halting biodiversity loss.
• SDG 14: Conserving aquatic ecosystems and species.
• SDG 12 and SDG 13: Promoting sustainable industrial practices and climate resilience.

Maintaining strong legal definitions that include habitat protection is essential to advancing these global goals and ensuring sustainable coexistence between human development and natural ecosystems.

1. Sustainable Development Goals (SDGs) Addressed or Connected to the Issues Highlighted in the Article

1. SDG 14: Life Below Water
   • The article discusses the impact of regulatory changes on endangered species, including aquatic life such as fish affected by habitat modification.
2. SDG 15: Life on Land
   • The focus on the Endangered Species Act (ESA) and protection of terrestrial wildlife and their habitats directly relates to this goal.
   • Issues concerning habitat destruction and species protection are central themes.
3. SDG 16: Peace, Justice and Strong Institutions
   • The article highlights legal and regulatory frameworks, including Supreme Court rulings and administrative rule changes, which relate to governance and justice.

2. Specific Targets Under Those SDGs Identified Based on the Article’s Content

1. SDG 14 Targets
   • Target 14.2: Sustainably manage and protect marine and coastal ecosystems to avoid significant adverse impacts, including by strengthening their resilience.
2. SDG 15 Targets
   • Target 15.1: Ensure the conservation, restoration and sustainable use of terrestrial and inland freshwater ecosystems and their services.
   • Target 15.5: Take urgent and significant action to reduce the degradation of natural habitats, halt the loss of biodiversity, and protect endangered species.
3. SDG 16 Targets
   • Target 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all.
   • Target 16.6: Develop effective, accountable and transparent institutions at all levels.

3. Indicators Mentioned or Implied in the Article to Measure Progress Towards the Identified Targets

1. Indicators Related to SDG 14 and 15
   • Population trends of endangered species (e.g., rusty patch bumblebee, protected fish species) as a measure of biodiversity health.
   • Extent of habitat modification or degradation impacting species survival.
   • Number of permits issued for industrial activities affecting habitats and the resulting impact on species.
2. Indicators Related to SDG 16
   • Number and outcomes of legal cases or litigations related to environmental protection and endangered species.
   • Public engagement metrics such as volume of public comments on regulatory proposals (e.g., 375,000 responses to the FWS proposal).
   • Degree of enforcement and adherence to environmental laws and regulations.

4. Table of SDGs, Targets, and Indicators

Source: investigatemidwest.org