Without the word “Harm” in the ESA, this would be legal.
So it happens that the current administration wants to rescind the word “Harm” from the Endangered Species Act (ESA). At face value this is an incredibly cynical act, which I will elaborate below.
The ESA has used the word “Take” to indicate any interaction with an endangered species as a product of human agency. From the statute:
“The term `take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
Up to this point the term has inured to the benefit communicating conservation efforts to the lay public, who are more likely to interpret it in more absolute terms – as in “taking possession,” whereas a preponderance of Environmental Impact Statements we’ve critiqued over the years deal more in terms of “harassment,”and not so much in terms of mortality.
This would include compromising the habitats of endangered species through chemical and noise pollution, extracting or destroying habitat components, and altering habitat characteristics needed for the health and long-term survival and restoration of the endangered species’ populations.
But the current U.S. Fish and Wildlife Service and the National Marine Fisheries Service are proposing that the Endangered Species Act (ESA) should just regulate deliberate, intentional acts directed at individual animals, and that (in their words):
“…the definition of “harm,” like the other nine verbs in the definition, should be construed to require an “affirmative act[ ] . . . directed immediately and intentionally against a particular animal—not [an] act[ ] or omission[ ] that indirectly and accidentally cause[s] injury to a population of animals…”
In other words they argue, because “harm” is more broadly construed as a ‘condition,’ it should be rescinded from the ESA. What this does from a regulatory standpoint is separate the endangered animal from where they live, and thus unhook habitat damage from the regulation.
So by way of this semantic legerdemain they would open up the floodgates for extractive and construction industries to run roughshod over their operation areas without regulatory oversight or legal consequences.
And honestly, who – even the most hardened, soulless operator would deliberately want to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” a North Atlantic Right Whale, or a Black-footed Ferret?
So this change would essentially eviscerate the Endangered Species Act except for regulating sociopaths.
This in-and-of-itself is sociopathic.
A deeper dive into the contorted logic behind their proposal can be found here:
https://www.regulations.gov/document/FWS-HQ-ES-2025-0034-0001
If, in reading through this you find it hard to track, it is because it is. This is either deliberate, or what happens when someone attempts to knit a cogent argument using a knitting needle and a 2”x4”