The Trump administration intends to overhaul the Endangered Species Act by changing what it means to harm an endangered or threatened species as part of the larger White House campaign to spur economic growth through deregulation, RealClearPolitics is first to report.
The president has long loathed red tape of the green variety, and one White House official predicted that overhauling the act “will have a seismic, real-world effect on the ability to build.”
“Environmental is the biggest tool for stopping growth,” Trump said during an interview with Joe Rogan last October, harking back to his New York days as a real estate developer and complaining that rare flora and fauna on a job site could quickly grind even the biggest construction projects to a halt. The candidate called environmental regulations “a weapon,” and later as president-elect, he vowed to expedite the environmental permit and approval process for any company investing at least $1 billion in the United States. Wrote Trump on Truth Social last December, “GET READY TO ROCK!!!”
Trump has slashed and burned his way through much of the regulatory regime of his predecessor already, rescinding nearly 80 Biden-era climate-related orders during his first day in office alone. Overhauling the ESA would easily eclipse those efforts, changing the regulatory, and perhaps natural, landscape forever.
The proposed reform must still make its way through the federal rule-making process. Legal challenges are almost certain to follow, although a conservative Supreme Court may not be sympathetic.
Sweeping change would follow from redefining a single word: harm.
While the plain text of the Nixon-era law prohibits the harming of endangered species, regulatory agencies have taken an expansive view that also prohibits modifying or degrading habitats where wildlife resides. The subsequent regulation has bedeviled conservatives and industry alike for decades. But now the administration intends to define “harm” as an attempt to “take” an endangered species, that is, “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” the animal itself.
For instance, hunting the northern spotted owl would remain illegal under the new rule; building a home or logging timber in a habitat where that bird is known to roost likely would not.
Other policies governing habitat for endangered species remain on the books for now, such as the 1969 National Environmental Policy Act and the 2016 Waters of the United States rule. But administration sources insist more changes will follow. “There isn’t one little trick to fix it all at once–there’s been this regulatory morass that has built up over 50+ years,” the White House official said before adding that the ESA reform was just the beginning and calling it “one big new step we have taken.”
The example isn’t incidental. The rule change runs to the heart of a longstanding debate over how the act ought to apply to private property. When the owl in question was listed as a threatened species in 1990, the federal government placed millions of acres in the Pacific Northwest off limits. Logging companies filed suit. The high court ruled against them.
And environmentalists rejoiced in the victory. They had likened the alternative – protecting wildlife without regulating private land – to playing the piano “with just the black keys.” But writing for the dissent, Justice Antonin Scalia warned that an expansive definition of harm expanded the regulation’s reach and “imposes unfairness to the point of financial ruin,” not just upon businesses “but upon the simplest farmer who finds his land conscripted to national zoological use.”
Conservatives insist that Scalia could see into the future. In the wake of that landmark case, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, the right argues that environmentalists and government agencies didn’t focus on bringing endangered species back from the brink so much as the left used the act to expand their power at the expense of industry. “Left-wing activists love the status quo,” complained one Trump official, “because it stops development, stops growth, and hurts the economy.”
