The Trump administration is killing endangered species by changing what the word “harm” means.
Let me tell you what the word does on the ground. A red-cockaded woodpecker needs a longleaf pine with a certain age and a certain heart-rot to carve out its nesting cavity. You don’t shoot the bird. You cut the pine. You don’t wound the salmon. You let the silt from the construction site run into the creek where it spawns. You don’t hunt the last whooping cranes. You drain the marsh they came back to.
For fifty years the Endangered Species Act treated that for what it is: harm. The U.S. Fish & Wildlife Service, going back to 1975, defined “harm” to include the habitat modification that kills a protected animal just as surely as a bullet does. The Supreme Court agreed in 1995 — six to three, Babbitt v. Sweet Home — that destroying a species’ home is hurting that species, and the law ought to say so.
The current administration has spent months building this very list of what they intend to let happen. They rescinded that habitat definition last week. Interior Secretary Doug Burgum called the old rule a loss of “common sense.” The American Petroleum Institute praised the change as good for “American energy leadership.” The Associated General Contractors said they appreciate “reducing unnecessary regulatory burdens.”
Read that sentence again from the ground I sit on. The construction industry is saying it is a burden not to fill in the creek where the last run of spawning salmon in the Puget Sound tries to make its way upstream. The oil industry is saying it is a burden not to count the well pad on the winter range as harm to the animal that needs that range to survive the winter.
This is the nationalist shell game the columns I write have been naming — the rhetoric says we are taking care of our own, and the action says we are taking care of the people who would like to extract what is left without anyone telling them to stop. Now they are lifting the restriction on what counts as killing something in the first place.
The Swinomish Indian Tribal Community and the Squaxin Island Tribe have filed suit. So have Earthjustice and the Center for Biological Diversity. They are arguing that the change is arbitrary and capricious — that the agencies have not explained themselves, that a rule that undoes fifty years of settled interpretation has to answer for itself. They are right. But the deeper argument is the one Kristen Boyles, the Earthjustice attorney, has made: the change is biologically nonsensical.
The deeper argument is that you cannot protect a species without protecting where it lives. The red-cockaded woodpecker lost nearly all of its longleaf pine habitat before the ESA ever listed it. The whooping crane came back from the edge of extinction by holding onto the marshes at Aransas. The northern spotted owl made it through the Pacific Northwest timber wars because the Supreme Court said the law meant what its words actually said — that starving an animal by taking its home is harm.
Justice Antonin Scalia dissented in that 1995 case. He wrote that the habitat rule was a “ruthless dilation of the word.” The administration is now citing Scalia’s dissent for the proposition that the law should only count pulling the trigger, not sawing down the tree the bird is standing in.
I cannot speak to what the courts will do with this. The 1995 precedent says habitat modification is harm under the statute. The agencies are not Supreme Courts. They are agencies. They can change their mind. The rule takes effect September 14. Between now and then, the tribes and the environmental groups are racing to get a judge to stop it. Whether a federal judge in Seattle lets them change the meaning of a word to empty out the law that word sits inside — that is the question the Earthjustice lawsuit in Seattle will answer.
But I can tell you what the change means on the ground in a county like mine. A farmer who wants to put in a center-pivot irrigation system on a piece of ground that drains into a creek where an endangered mussel lives — or a salamander, or a fish nobody in Adams County has seen since the 1980s — can now argue he is not harming anything. He is irrigating. The harm happens downstream, later, in a different county, in a different watershed, to a thing the law says is worth protecting. The administration’s new rule says that is not his problem.
Wendell Berry wrote fifty years ago about the logic that separates the act from its consequence. A man who cuts down the woods does not believe he is killing the deer; the deer are not there. A man who drains the marsh does not believe he is starving the crane; the crane is somewhere else. A man who lets the silt run into the creek does not believe he is drowning the redd of eggs on the gravel bottom; the eggs are not his eggs and the creek is not his creek.
The new rule codifies that separation. It says harm means what you do directly to the animal’s body, not what you do to the only place it can live.
The thing the administration has not answered — the thing the lawsuit will press — is what the law is for if it does not cover what actually kills the listed species. The Center for Biological Diversity has documented that for most animals on the endangered list, habitat loss is the primary driver. Pollution, climate change, development, the slow conversion of wild land into productive land — that is how they die. Not by the gun. By the grading permit. By the irrigation well. By the timber sale that takes the last stand of old-growth longleaf pine that had the heart-rot the woodpecker needed to carve its nest.
If the law no longer counts that as harm, the law protects nothing but the species that are already dead. The rest of them are just waiting for the bulldozer to arrive, and the paperwork to say the bulldozer was not harming anything.