Who gains from saving nature
Ledger 1 : 33 — For each dollar financing nature-based solutions in 2023, about $33 financed activities harmful to nature. (UNEP)
Cases / Law, regulation and treaties · United States · 2025–2026

Removal of the Endangered Species Act 'harm' definition

Nature's voice · report
No measurement of the harm done to me here is on record.
Did nature suffer? Not measured.
Not on record
  • The record does not name which of my species, waters, soils or forests were harmed.
What the record lacks: 2 none on record · 1 not measured · 2 disputed See the gaps

In July 2026 two US federal agencies removed the regulatory definition of “harm” under the Endangered Species Act, which had covered significant habitat modification that kills or injures listed wildlife. Three lawsuits challenging the change were filed that month.

RemovedRegulatory definition of “harm” under the Endangered Species Act
Final rule published 14 July 2026; effective 14 September 2026 according to some sources (13 August and 12 September in others).

Status As of September 2026: the final rule took effect (date varies by source) and three lawsuits filed in July 2026 were pending; their status after September could not be confirmed.

What?
In July 2026 the US Fish and Wildlife Service and the National Marine Fisheries Service removed the regulatory definition of “harm” under the Endangered Species Act, so that habitat modification alone is no longer a prohibited act. EPOnline
Where?
United States; federal regulations 50 CFR 17.3 and 222.102. Beveridge & Diamond
When?
Proposed 17 April 2025; final rule published 14 July 2026; effective 14 September 2026 according to some sources (13 August and 12 September in others). EPOnline
Who?
Gained
  • Farmers, ranchers, water managers and landowners — Supported the removal of the definition. EPOnline
Lost
  • The mitigation banking market — Named as a losing party in the Federal Register text, according to the sources reviewed.
Harmed
None on record
Why?
The agencies cited the Loper Bright decision and the statute's single best reading; Secretary Burgum said the Act had been misused to block lawful land use.
How?
The rule deletes the definition from the regulations without replacing it; killing or injuring a listed animal remains prohibited and is assessed case by case. EPOnline
6 of 6 questions answered from the record

What happened

The record, in order.

The Endangered Species Act prohibits “taking” a listed animal, which covers killing, injuring and harming it. Under the agencies' regulations (50 CFR 17.3 and 222.102), “harm” included significant habitat modification that actually killed or injured wildlife. The US Supreme Court upheld that definition in 1995 in the Sweet Home case.

The US Fish and Wildlife Service and the National Marine Fisheries Service proposed removing the definition on 17 April 2025. About 358,000 comments were received. The final rule was published on 14 July 2026. Some sources give 14 September 2026 as the date it took effect; others give 13 August or 12 September. The rule applies going forward.

The rule removes the definition and does not replace it. Habitat modification alone is no longer a prohibited act. Where a listed animal is shown to have been killed or injured, the case is assessed individually. Existing permits are unchanged, and obligations under Section 7 of the Act and for critical habitat continue.

The agencies cited the Supreme Court's 2024 Loper Bright decision, which ended courts' deference to agency interpretations of statutes, and what they called the single best reading of the statute, as well as Justice Scalia's dissent in Sweet Home. Interior Secretary Doug Burgum said the Act had been misused for years to block lawful land use and that the change brings respect for property and predictability. Farmers, ranchers, water managers and landowners supported the change.

Three lawsuits challenging the rescission were filed in July 2026, in Washington, California and South Carolina. Their status after September 2026 could not be confirmed.

  1. 1995US Supreme Court upholds the regulatory definition of “harm” in the Sweet Home case
  2. 2024Supreme Court's Loper Bright decision ends deference to agency interpretations of statutes
  3. 202517 April: agencies propose removing the definition; about 358,000 comments follow
  4. 202614 July: final rule published. July: three lawsuits filed in Washington, California and South Carolina. September: rule takes effect (14 September according to some sources; 13 August and 12 September in others)

What was said

Claims, in the words of those who made them.

Where accounts differ

Each party's account, side by side, with its source. The record does not settle these points; it shows them.

Is removing the “harm” definition required by the statute after Loper Bright?
Government and regulators
US Fish and Wildlife Service and National Marine Fisheries Service

Loper Bright ended deference to agency interpretations, and the statute's single best reading does not include habitat modification; Justice Scalia's Sweet Home dissent supports this.

Courts
Courts in Washington, California and South Carolina

Three lawsuits challenging the rescission were filed in July 2026; no ruling found.

EPOnline

How it looked

What was shown, beside what was recorded.

Shown

  • The change was presented as respect for property rights and predictability, after the Act had been used for years to block lawful land use.
    Interior Secretary Doug Burgum, as reported
  • The removal was presented as following the statute's single best reading after Loper Bright.
    US Fish and Wildlife Service and National Marine Fisheries Service

Recorded

  • The previous regulatory definition included significant habitat modification that actually killed or injured wildlife; the Supreme Court upheld it in 1995.
    EPOnline
  • The final rule published on 14 July 2026 removes the definition without replacing it; habitat modification alone is no longer a prohibited act.
    EPOnline
  • Where a listed animal is shown to have been killed or injured, the case is assessed individually; existing permits are unchanged.
  • Section 7 and critical-habitat obligations continue, and actually killing or injuring a listed animal remains prohibited.
  • About 358,000 public comments were received on the proposal.
  • The Federal Register text names the mitigation banking market as a party that loses.

Who gained

Money that reached nature, beside money that stayed elsewhere.

Reached nature or the ground

Not published
No figure published.

Gained elsewhere

Not totalled
Currency: USD · Window: 2025–2026. All figures cover the same period. * Estimate built from cited figures.

Responses on record

  • US Fish and Wildlife Service and National Marine Fisheries Service (2025–2026): Cited the Loper Bright decision, the statute's single best reading and Justice Scalia's Sweet Home dissent as the basis for removing the definition.
  • US Department of the Interior (Secretary Doug Burgum) (2026): Said the Act had been misused for years to block lawful land use and that the change brings respect for property and predictability.

In court and with insurers

Every proceeding and every insurer decision on record.

Lawsuits and rulings

  1. 2026-07–Ongoing
    Challenges to the rescission of the Endangered Species Act “harm” definition
    Federal courts in Washington, California and South Carolina (as reported; courts not identified in the sources reviewed) · Administrative · Not identified in the sources reviewed → Not identified in the sources reviewed

    Three lawsuits were filed in July 2026 challenging the final rule. Their status after September 2026 could not be verified. EPOnline

Insurers

No insurer decision on record.

What nature saw

Outcomes measured on the ground, and nature's note.

Nature's report opens this page. Below: further outcomes measured on the ground.

Habitat modification alone as a prohibited act
No longer
Under the final rule published 14 July 2026
Killing or injuring a listed animal
Still prohibited
Assessed case by case; existing permits unchanged
Lawsuits challenging the rule
3
Filed July 2026 in Washington, California and South Carolina

What we don't know

Undisclosed, unproven, untried: recorded as data.
Case pending / contested

Nature

  • Not measured Harm to nature: The record holds no measurement of harm to nature.

Accounts

  • Disputed Is removing the “harm” definition required by the statute after Loper Bright?

Record

  • Disputed The effective date differs across sources: 13 August, 12 September or 14 September 2026.
  • None on record No replacement definition has been issued.
  • None on record The status of the three lawsuits after September 2026 could not be verified.

Did the harm stop?

Not applicable: the change removes a prohibition rather than ending a harm. The rule applies going forward and existing permits are unchanged.

Who paid?

Not established. The Federal Register text names the mitigation banking market as a party that loses.

Sources

Voices on record: — Company or project— Government and regulators— Courts✓ Press and investigations— Communities and civil society— Researchers

Press and investigations

Connected cases

Related matters, and cases linked to this one through the same organisations, with the role each played in both.
Terms used on this page

Law and courts

Punitive damages
Money a court orders a defendant to pay to punish especially reckless conduct, on top of compensation for losses. Mainly used in US courts.
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