Earthjustice and other environmental groups filed a lawsuit in federal court in Seattle after the federal government officially rescinded the Endangered Species Act's definition of "harm," a rule published Tuesday that takes effect Sept. 14.
Earthjustice brought the challenge alongside more than half a dozen conservation organizations, including the Center for Biological Diversity, Columbia Riverkeeper, Conservation Law Foundation, Conservation Northwest, Friends of the Wild Swan, Oregon Wild, Sierra Club, Swan View Coalition and WildEarth Guardians.
Kristen Boyles, an attorney with Earthjustice, said, "The agencies haven't explained themselves adequately" and called the change "an unreasoned and unreasonable decision." She said the groups are contesting the revision on multiple legal grounds and expects increased litigation over individual projects.
The Swinomish Indian Tribal Community and the Squaxin Island Tribe also filed a lawsuit in U.S. District Court, writing in their complaint that "the loss of long-standing protection for the habitat of ESA-listed salmon species will injure the Tribes and their members" and linking habitat degradation to declines in Puget Sound salmon stocks.
Secretary of the Interior Doug Burgum said, "This action restores common sense, respects private property, provides much-needed certainty for landowners and follows the statute Congress actually passed," and a NOAA Fisheries representative said in an emailed statement, "The final rule will restore the definition of 'harm' to its original intent as written under the ESA, and will maintain protections for endangered species while reducing unnecessary or duplicative permitting requirements, cutting compliance costs, and eliminating confusion for Americans."
Industry groups backed the change in public comments last year: oil and petroleum groups including the American Petroleum Institute wrote that "the proposal to rescind the 'harm' definition is justified many times over," and the Associated General Contractors of America said they "appreciate the administration's efforts to reduce unnecessary regulatory burdens." Holly Hopkins of the American Petroleum Institute said, "We remain committed to supporting commonsense ESA [Endangered Species Act] policies that both protect wildlife and support American energy leadership."
The Endangered Species Act was signed into law in 1973 by President Richard Nixon, and the U.S. Fish & Wildlife Service had long interpreted "take" to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect," with "harm" encompassing alteration or destruction of critical habitat. The Supreme Court in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon upheld that habitat modification can constitute "harm" in a 6-3 decision, and Justice Antonin Scalia wrote in a dissent, "To define 'harm' as an act or omission that, however remotely, 'actually kills or injures' a population of wildlife through habitat modification, is to choose a meaning that makes nonsense of the word that 'harm' defines." Tara Zuardo of the Center for Biological Diversity said, "For most all species, the number-one driver of extinction [is] damage and harm to their habitat" and warned, "So if you're no longer counting that as harm under the law, you're not going be able to protect any of the listed species."