Rebecca Hays Barho Discusses Impact of New ESA Rule

Rebecca Hays Barho was quoted in the Bloomberg Law article “Trump Sets Endangered Species Rules on Path to Supreme Court.”

The article examines the impact of the U.S. Fish & Wildlife Service (USFWS) and National Marine Fisheries Service (collectively, Services) decision to rescind the regulatory definition of “harm” from Endangered Species Act (ESA) implementing regulations (Rescission), which is arguably the primary means through which the federal government regulates non-federal activities. The rescission was published in the Federal Register on July 14, 2026, and is set to take effect on September 14, 2026. The administration’s decision to rescind the regulatory definition of “harm” is already subject to at least half a dozen lawsuits.

The ESA prohibits “take” of endangered species of fish and wildlife, and defines “take” as to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” By regulation, the Services defined “harm” to include modifying a species’ habitat in some circumstances. Utilizing the Chevron deference framework, the U.S. Supreme Court upheld the Services’ regulatory definition of “harm” in a facial challenge to the same in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon with Justice Scalia dissenting. In his dissent, Justice Scalia disagreed with the majority and concurring opinions and expressed the view that the “take” prohibition of the ESA – including the term “harm” – was intended to apply only to “affirmative” actions directed intentionally against a particular animal.

The Services’ rationale for the Rescission included a reference to the 2025 Supreme Court decision in Loper Bright Enters. v. Raimondo, which overturned Chevron deference, and explained the Services no longer viewed the “harm” definition as within the “best meaning” of the ESA.

Commenting for the article, Rebecca said, “The repeal begins a period of uncertainty over what can be legally done in an endangered species’ habitat. The law remains unclear whether a company can legally cut a tree containing the nest of a threatened bird, and the future of the rollback itself is unclear because of legal challenges. For the time being, it seems that uncertainty is the only certainty.”