Following the removal of habitat protections in the Endangered Species Act (ESA) by the Trump administration last month, lawmakers have introduced a bill that would nullify the action and reinstate habitat protections for endangered animals.
The U.S. Department of the Interior and the U.S. Department of Commerce announced in July that the agencies were removing the definition of harm within the ESA, a definition which prohibited activity that would damage habitats that endangered species depend on.
“For years, federal agencies abused the ESA to obstruct lawful land use and burden American families and businesses,” Interior Secretary Doug Burgum said in the July announcement. “That approach turned routine activity into a regulatory trap, drove up costs that impacted people’s lives, and expanded federal authority beyond what Congress intended.”
Proponents of the move said that the decision addresses legal concerns, rather than acting as a policy position. Violations of the ESA can come with prison time, a consequence that some say is too severe.
However late last month, Rep. Brian Fitzpatrick (R-PA) and Rep. Mike Quigley (D-IL) introduced a bill that could restore the harm definition and habitat protections.
“Congress enacted the Endangered Species Act to prevent extinction—not to document it after the damage has already been done,” Fitzpatrick said in the announcement. “For more than fifty years, our nation’s protections have reflected a basic legal, scientific, and commonsense truth: when habitat destruction actually kills or injures protected wildlife, that destruction is harm. The Administration’s rule would erase that longstanding safeguard through regulatory action and leave vulnerable species exposed at the precise moment the law is intended to protect them.”
Conservation groups have also raised concerns over how the removal of the harm definition would impact protected wildlife in Wyoming, such as black-footed ferret, Canada lynx, grizzly bears and fish dependent on the Colorado River.
Shortly after the initial announcement by the Trump administration, several conservation groups filed a lawsuit to overturn the move.
Repealing the definition may also have negative impacts on local communities, according to Tara Zuardo, senior advocate for the Center of Biological Diversity.
“I think everyone can agree that we do want habitat protection for both humans and animals as well,” Zuardo said. “And so that is what kind of destroys me about this rescission, is it's not only something that's gonna harm endangered species, but also humans and human communities as well.”
What is at risk?
Zuardo said evaluating the “downstream” effects of reduced habitat regulation through the ESA is nuanced. However, a few endangered animals stand out to her as being at a potentially high risk.
The black-footed ferret, historically, ranged across the Great Plains from Canada down to Mexico. The weasel cousin was placed on the endangered species list in 1967 and is the only ferret native to the Americas. The U.S. Fish and Wildlife Service (FWS) identified loss of prairie dogs and subsequent necessary habitat as one of four significant risk factors contributing to the ferret’s decline. This is alongside increasing drought conditions, disease and “declining genetic fitness.”
“For Wyoming … the black-footed ferret is a really good example, because you have a lot of destruction and degradation of prairie dog ecosystems, [and] that's a huge risk to black-footed ferret. They rely on prairie dogs for prey, burrow systems for shelter and reproduction, and then landscape connectivity,” Zuardo said.
Despite repopulation efforts including assisted breeding, the last of the wild ferrets was considered extinct by 1974. The last captive ferret died in 1979.
Then, in 1981, wild populations were rediscovered outside of Meeteetse. Today there are currently believed to be about 340 wild ferrets across the Mountain West.
”Another example would be Canada lynx,” Zuardo said of endangered animals susceptible to potential habitat degradation. “Loss and fragmentation of boreal forest habitat is a huge issue in Wyoming. Those lynx populations depend on mature spruce-fir forests, dense understory vegetation, snowshoe hare habitat and landscape connectivity.”
Canada lynx were listed in the ESA in 2000 and have a very low population in Wyoming, according to the FWS. Colorado and Wyoming make up the southern range for the lynx, but reduced viable habitat has led to significant population decline. There is currently no known population size for the lynx in Wyoming.
Five days after the announcement removing the “harm” definition within the ESA, the Department of the Interior announced a significant reduction in “critical” habitat for the Canada lynx in Wyoming.
The decision removed all protected habitat for the lynx in the Greater Yellowstone Area, including parts of Wyoming and Montana. It will also add protected habitat in Colorado.
“The Service’s decision to eliminate all critical habitat for the Canada lynx in Wyoming is startling, and a drastic departure from the changes the agency proposed in 2024,” Sierra Club Wildlife Campaign Manager Ben Greuel said in a statement.
Primary threats to habitat in Wyoming can include industries such as logging and oil interests, natural threats such as increasing wildfire severity and drought conditions, road construction, recreational use and private landowner development.
Jonathan Wood, vice president of law and policy for the Property and Environment Research Center, said he was hopeful that many of these threats may not become an immediate challenge to wildlife following the harm repeal.
“There aren't that many landowners who are intentionally trying to do harm to a species,” Wood said. “Most of the conflicts are [when] someone plows a field or harvests some timber, and a connection is made between what they're doing and a species that perhaps isn't even there at the time.”
Industry in the area is often slow to change practices when it comes to habitat protections, according to Zuardo, due to the potential for decisions to be rescinded or changed again in the future.
“There's not a lot we can do for species after they're already dead and taken and directly killed. The ESA was meant to prevent that problem, was meant to prevent the animal from being in a critical situation, and to prevent extinction and to prevent death,” Zuardo said. “And the only way you can do that, of course, is by protecting the home where it lives.”
What is the harm definition and what’s changing?
In 1973, Congress implemented the Endangered Species Act to provide protections for endangered plants and animals in order to allow those populations to recover. At its inception, the ESA received nearly unanimous, bipartisan support.
In 1975, the FWS updated the definition of harm in the ESA to not only limit directly injuring or killing endangered animals, but to also extend to damaging the environment that the animals live and depend on.
“There's just kind of a common sense recognition that if you're gonna prevent extinction, you have to protect a species' home,” Zuardo said.
However, that updated definition would face significant scrutiny over the next several decades, including through a legal case that ultimately made its way to the U.S. Supreme Court. The suit centered around the argument that Congress never intended for habitat to be included in the ESA when originally passed.
The Supreme Court ultimately upheld the current precedent in place by the FWS. This maintained habitat protections within the ESA.
Critics of the habitat inclusion argued that the ESA was never designed to penalize individuals for the possibility of downstream effects on endangered animals.
“This reform is based on the Supreme Court’s 2024 decision in Loper Bright v. Raimondo, which requires agencies to follow the single best meaning of a statute rather than contorting laws to fit political agendas,” the press release with the July announcement said. “Using the legally justifiable standard, the Services [Interior and Commerce] determined that the prior definition of ‘harm’ was an unlawful regulatory intrusion that interfered with private property rights.”
Habitat destruction is often unintentional and can occur in areas where the endangered animal is only present during a specific season, according to Wood. This can lead to potentially severe consequences when considering the ESA.
“Because it is a federal criminal law that can be enforced through putting people in prison, there's an argument for being circumspect in adopting more ambitious interpretations of that statute,” Wood said.
The service’s obligation to follow the “best meaning of a statute,” Wood said, is where the heart of the conflict lies.
“The service did not rescind the harm definition because it thinks it's bad policy. It did it because it thinks it's illegal,” Wood said.
However, after over 50 years of enforcement of habitat protections within the ESA, Zuardo said that the recent move is destroying years of precedent.
“What they've done is they violated the plain language of the Endangered Species Act, they violated this 1995 Supreme Court precedent, and then they've also gone against decades of their own enforcement and application in terms of regulatory practice, Endangered Species Act consultations, enforcement, recovery programs, settled reliance by landowners, biological opinions [and] habitat conservation plans,” Zuardo said.
The Center for Biological Diversity, alongside other conservation groups, filed a lawsuit and requested an injunction in the case to move quickly through the legal process and maintain necessary protections.
“This gutting of the Endangered Species Act is part of a broader assault on our bedrock environmental values,” John Persell, staff attorney at Oregon Wild, a conservation group aimed at land and wildlife protection, said in a July statement. “From public lands to wildlife to clean air and drinking water, the Trump administration is determined to waste, loot, and pollute America’s natural heritage.”
The harms rescission is one of several recent changes to the Endangered Species Act by the Trump administration this summer. Significant changes in the act around grizzly bear protections, reduced protections for “threatened” species and shifts in how critical habitats are evaluated have all been announced in the last several weeks.
