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FWSRulemakingFWS-HQ-ES-2025-0034

Endangered and Threatened Wildlife and Plants; Rescinding the Definition of “Harm” Under the Endangered Species Act

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Nov 20, 2025
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closed 435d ago
Animal Welfare Institute filings
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Animal Welfare Institute filed 1 comment on this docket between May 20, 2025 and May 20, 2025. 299 other organizations filed here. The comment window closed 435d ago.

What Animal Welfare Institute filed (1)

May 20, 2025· Comment from Animal Welfare Institute· FWS-HQ-ES-2025-0034-212965

Dear Acting Director Souza and Director Piñeiro Soler: The Animal Welfare Institute ("AWI"), on behalf of our members and supporters nationwide, submits the following comments in strong opposition to the U.S. Fish and Wildlife Service's ("USFWS") and the National Marine Fisheries Service's ("NMFS") (collectively the "Services") proposed rulemaking that would rescind the Services' longstanding definition of "harm" under the Endangered Species Act ("ESA"), 15 U.S.C. §§ 1531, et seq. See 90 Fed. Reg. 16,102 (Apr. 17, 2025). AWI is a nonprofit organization whose mission is to alleviate the suffering caused to animals by people. We seek to improve the welfare of animals everywhere: in agriculture, in commerce, in our homes and communities, in research, and in the wild. Since 1951, AWI has advanced its mission through strategically crafted policy and legal advocacy, educational programs, research and analysis, litigation, and engagement with policymakers, scientists, industry, educators, other NGOs, the media, and the public. We seek scientifically-grounded protections for animals in all settings, and robust enforcement of those protections. Since 1975, USFWS's definition of "harm," which was subsequently adopted by NMFS, has encompassed the concept of killing or injuring wildlife by significantly modifying or degrading habitat. The Services propose to rescind this 50-year-old definition based on a misinterpretation of the Supreme Court's decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 400 (2024), and an assertion that the Services' decades-old definition does not represent the single, best meaning of the statute. 90 Fed. Reg. at 16,103. This assertion is based on Justice Scalia's dissenting opinion in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995), despite the fact that Justice Scalia's analysis in that case was assessed and resoundingly rejected by the Court majority. Moreover, the Services entirely fail to acknowledge the facts and circumstances that gave rise to the Services' definition of harm. This includes a science-based recognition that protecting a listed species' habitat is key to their survival and recovery, and a mandate to enact the clear intent of Congress, which identified habitat loss as the primary driver of species extinction. If the proposed rule is adopted, threatened and endangered species will lose vital areas that they require to breed, feed, and shelter. This will inevitably hinder recovery and diminish the effectiveness of the ESA. AWI therefore urges the Services to withdraw the proposed rule. This attached comment contains nine sections. Section I introduces the purpose of ESA, the statute's legal framework, and the Services' implementing regulations. Section II demonstrates that the Services' current definition of "harm" is grounded in the best available science. Section III refutes the Services' misplaced reliance on Loper Bright as the justification for undertaking this proposed rulemaking. Section IV addresses the Sweet Home Court's upholding of the current definition of "harm," which represents the single, best meaning of the statute. Section V reviews decades of lower court rulings that have supported the Services' current definition of "harm." Section VI demonstrates that Sweet Home and lower court decisions are entitled to stare decisis. Section VII addresses the Services' impending violation of the Administrative Procedure Act by issuing an arbitrary and capricious proposal that reverses prior agency policy without adequate explanation. Section VIII highlights reliance interests that have developed based on the current definition of "harm" in adopting mitigation measures that have protected listed species. Section IX makes clear that the Services must prepare an environmental impact statement ("EIS"), or at minimum an environmental assessment ("EA"), to comply with the National Environmental Policy Act. Regards, Joha…

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Abstract

Please see the supporting and related materials in this docket for a document that summarizes the proposed rule.

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Co-filers (299)

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