Trump move to redefine “harm” in Endangered Species Act may pose ecological risks for Colorado

The Trump administration Wednesday proposed a rollback of Endangered Species Act protections that left Western wildlife advocates sounding gutted but vowing to fight in court, arguing the erasure of decades of habitat defense threatens species from the lynx to black-footed ferrets to cutthroat trout. 

The U.S. Fish and Wildlife Service and the National Marine Fisheries Service said the “harm” prohibited by the act will now be interpreted to mean only the direct killing or collecting of a protected animal, fish or plant. They are directly challenging a 1995 U.S. Supreme Court decision that allowed federal and state agencies to prevent indirect harms, such as a dam that would ruin fish habitat or a new building wiping out a prairie dog colony that black-footed ferrets depend on for food. 

In other words, shooting a California condor is still against the act, but no longer would federal agencies try to stop cattle grazing in critical Gunnison sage grouse habitat in northwestern Colorado, environmental groups said after the announcement. 

“Trump is trying to drive a knife through the heart of the Endangered Species Act. This will absolutely upend how we’ve been protecting endangered species for the last 40-plus years,” said Noah Greenwald, an endangered species specialist with the Center for Biological Diversity. The federal change would greatly encourage the drilling, mining, damming, tree cutting and grazing that threaten species like the spotted owl, the greenback cutthroat trout and more, Greenwald said. 

The Trump administration is treating the change like a reinterpretation of rule language, which it has the power to do immediately, Greenwald said. National and Colorado environmental groups expected new attacks on the Endangered Species Act, long critiqued by business and extraction interests, but did not expect such a consequential move in the first 100 days of the presidency, he said. 

The Center for Biological Diversity will no doubt join other groups in challenging the rule change in federal court, he said. 

Save the Colorado, a nonprofit that has battled major Western dam projects to protect fish and wildlife habitat, said “the Trump administration gets it wrong again.”

“So-called ‘direct harm’ to an endangered fish in the Colorado River would be purposely catching and killing them, whereas ‘indirect harm’ would be building a dam that blocks fish migration to their critical habitat and spawning grounds — either way, the fish is dead,” Save the Colorado cofounder Gary Wockner said. 

Colorado Parks and Wildlife officials said they were studying the proposed rule and did not have a comment Wednesday.

The long-simmering dispute over the details of Endangered Species Act protections currently center on seemingly esoteric interpretations of words like “take” and “harm.”

The new administration rule proposal says in part, “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. This makes sense in light of the well-established, centuries-old understanding of ‘take’ as meaning to kill or capture a wild animal,” the rule reads. It was unelected regulators, the Trump administration now says, who added the word “harm” to expand protections beyond what Congress intended. 

“Regulations previously promulgated by (Fish and Wildlife Service) expanded the ESA’s reach in ways that do not reflect the best reading of the statute, to prohibit actions that impair the habitat of protected species,” the new rule says.

The rule cites the conservative, minority opinion in a 1995 Supreme Court case on how far federal regulators can go in implementing Congressional acts, Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. The majority in that case upheld executive branch power to expansively apply rules when enforcing Congressional acts, citing the previous precedent in the “Chevron deference” from a 1984 decision. Dissenting in the 1995 case were conservative justices Antonin Scalia, Clarence Thomas and William Rehnquist.

Last year, a far more conservative Supreme Court majority overturned the “Chevron deference” to executive branch interpretations.

The nonprofit Earthjustice also said it would join with partners to challenge the new rule in courts. 

“The Trump administration is trying to rewrite basic biology — like all of us, endangered species need a safe place to live,” said Drew Caputo, an Earthjustice vice president of litigation.

The more expansive use of the Endangered Species Act over the past 50 years, Earthjustice said, “recognizes the common-sense concept that destroying a forest, beach, river or wetland that a species relies on for survival constitutes harm to that species.”

Margaret Kran-Annexstein, director of Colorado Sierra Club, said, “People aren’t going to stand for the complete erasure of some of the most iconic environmental legislation on Earth. Coloradans know the value wildlife and healthy ecosystems bring to our lives. Coupled with plans to sell off public lands, the Trump administration really is finding every possible lever they can pull to give corporations a free pass while ignoring the extinction and climate crisis.”