https://www.cfact.org/2025/05/21/eliminate-the-harm-misdefining-harm-does-via-the-esa/
The Endangered Species Act today serves the anti-capitalist gadflies of the Left far better than it protects wildlife. Read CFACT’s second official submission focusing on reforming the definition of “harm.”
By Rob Gordon, Advisor to CFACT
With nearly 1,700 domestic endangered and threatened species, the majority of the nation is ‘suitable’ habitat for the breeding, migrating, feeding or sheltering for one species or another. Essentially, with the existing harm definitions the agencies have fabricated a habitat regulatory mechanism that is only tethered to harm’s plain meaning and its companion take words by the thinnest thread and often not tethered at all. In practice, the current definitions of harm enable if not foster regulation on the basis of speculation and conjecture. As a result, USFWS and NMFS operate as if they have carte blanche to regulate any and all habitat modification, extracting concessions from vulnerable landowners as they do. The agencies’ interpretation and application has nearly deformed the term “harm” into an arbitrarily wielded national land use veto. The proposal to rescind the USFWS’s and NMFS’s harm definitions and instead rest on the statutory definition of “take” reflects the single, best meaning of the statutory text and is unquestionably a vast improvement over the current definitions.
USFWS’ and NMFS’s demonstrated penchant for abusing regulatory authorities however, could perhaps be further appropriately curtailed by adding requirements that harm to an individual not theoretical species must be demonstrated. This could include using direct physical evidence of death or injury (e.g. with a body, blood, feathers, egg shells), or at the least direct evidence that the species allegedly suffering the harm was at the site where the harm allegedly occurred (e.g. photo documentation, eDNA, tracks, scat, a fresh nest), and direct evidence that the killing or injury was demonstrably caused by the action not simply the product of a
theoretical chain of events.
