Both Trump administrations have taken major steps that have limited the reach and protections of the Endangered Species Act (ESA). While some of the administration’s actions align with those taken during the first Trump administration, others are unprecedented and represent a significant change in application of the Act. The U.S. Fish and Wildlife Service and National Marine Fisheries Service recently rescinded the regulatory definition of “harm” as applied to the ESA and released internal guidance adopting a limited view of the actions barred by the statute. These changes eliminate the statute’s application to a wide range of actions that protect endangered species and the habitats they need to survive.
What’s even more unusual is the administration’s invocation of Loper Bright Enterprises v. Raimondo to not only deregulate, but to reject Supreme Court precedent that is at odds with its new approach. Loper instructs courts to determine a statute’s “single best meaning” rather than defer to an agency’s reasonable interpretation of ambiguous language in a statute. But the administration has instead applied Loper as a directive for agency rulemaking, rejecting statutory interpretations by the Supreme Court it now believes do not reflect the “single best meaning.”
Our analysis, Rescinding “Harm,” Reconsidering Precedent: Dismantling the Protections of the Endangered Species Act in the Second Trump Administration, outlines the actions that have weakened the ESA with a focus on the rescission of the “harm” definition and the unusual and yet untested rationale used to support this rollback. It also highlights some of the legal risks of the administration’s strategy and considers how these actions fit into a broader pattern in the administration’s deregulatory agenda.