Trump administration rescinds Endangered Species Act harm definition after Supreme Court shift
In 1995 the Supreme Court upheld this exact regulation 6-3 in Babbitt v. Sweet Home — under Chevron, holding it a PERMISSIBLE reading of the statute rather than the required one. Loper Bright (2024) overruled Chevron and replaced 'permissible' with 'the single best reading.' The agencies then rescinded the rule adopting Scalia's Sweet Home dissent. The dissent did not win by being reversed; it won because the standard of review changed underneath the majority. A ruling that an agency MAY read a statute a certain way is also a ruling that it NEED NOT — so the 1995 victory is precisely what made the 2026 repeal available.
In 1995 the Supreme Court upheld this exact regulation 6-3 in Babbitt v. Sweet Home — under Chevron, holding it a PERMISSIBLE reading of the statute rather than the required one. Loper Bright (2024) overruled Chevron and replaced 'permissible' with 'the single best reading.' The agencies then rescinded the rule adopting Scalia's Sweet Home dissent. The dissent did not win by being reversed; it won because the standard of review changed underneath the majority. A ruling that an agency MAY read a statute a certain way is also a ruling that it NEED NOT — so the 1995 victory is precisely what made the 2026 repeal available.
A joint Fish and Wildlife Service and National Marine Fisheries Service rule rescinding the Endangered Species Act's regulatory definition of 'harm' took effect September 14, 2026, ending more than 40 years in which significant habitat modification that actually killed or injured wildlife counted as a prohibited take.
Why it matters: The word 'harm' is still in the statute; only its regulatory definition is gone, and no replacement has been proposed. That leaves landowners, developers and utilities facing a bare undefined word interpreted case by case — arguably less certainty than before, for a rule whose stated aims included eliminating confusion.
Date to watch: Whether any court enjoins the rule, and whether it does so on the meaning of harm or on the alleged procedural failures, which would resolve nothing about the word
Sources:
- Final rule, 91 Fed. Reg. 43,300 (2026-07-14)
https://www.federalregister.gov/documents/2026/07/14/2026-14195/rescinding-the-definition-of-harm-under-the-endangered-species-act - Bracewell — the rescinded definition (2026-07-16)
https://www.bracewell.com/resources/fws-and-nmfs-rescind-endangered-species-act-regulatory-definition-of-harm/ - Babbitt v. Sweet Home, 515 U.S. 687 (1995-06-29)
https://supreme.justia.com/cases/federal/us/515/687/ - UW Law — the ESA explained (2026-07-24)
https://www.youtube.com/watch?v=6hux79tg1GI - Interior — statement on the rescission (2026-07-10)
https://www.doi.gov/pressreleases/department-interior-restores-clear-esa-enforcement-rescinding-misguided-harm - State AGs' complaint (2026-09-09)
https://oag.ca.gov/system/files/attachments/press-docs/ecf-1complaint-declaratory-reliefharm-rule-rescission-litigation.pdf
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