20 STATES + WASHINGTON, D.C. ARE SUING OVER CHANGES TO THE ENDANGERED SPECIES ACT
When 20 states and the nation’s capital go to court over protections for endangered wildlife, the significance extends far beyond the courtroom. At the center of the dispute is a fundamental conservation question: What happens to endangered species when the rules protecting them—and their habitat—change?
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On September 9, attorneys general representing 20 states and Washington, D.C. filed two federal lawsuits challenging recent changes to regulations implementing the Endangered Species Act. The coalition stretches across the country, and the lawsuits challenge three regulatory changes that could have important consequences for wildlife and the habitats upon which species depend.
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Perhaps the most consequential involves a small but extraordinarily important word: “harm.”
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For decades, federal regulations defining prohibited “take” of endangered wildlife interpreted “harm” to include significant habitat modification that actually kills or injures wildlife. The administration has finalized a rule removing that regulatory definition, arguing that the previous interpretation expanded the Endangered Species Act beyond the authority Congress provided.
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The states see it very differently. They argue that narrowing the interpretation of “harm” could allow activities such as drilling, mining or development to substantially damage habitat even when that destruction foreseeably injures or kills protected animals, provided the activity is not immediately and intentionally directed at the animals themselves. The states describe the change as “a reversal of staggering proportions.”
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The lawsuits also challenge changes affecting newly listed threatened species. The U.S. Fish and Wildlife Service has eliminated future use of its so-called “blanket rule,” under which newly listed threatened species could automatically receive many of the protections afforded endangered species. Instead, protections may be developed specifically for individual threatened species.
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The administration argues that this approach allows protections to be tailored to the conservation needs of each species. The states contend that eliminating the blanket approach can leave newly threatened wildlife without important protections while species-specific rules are developed.
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A third disputed change involves critical habitat. Federal law allows economic, national-security and other relevant impacts to be considered when determining whether areas should be excluded from critical-habitat designations. The administration has revised how that process is implemented, saying the changes provide greater transparency and predictability. The states argue that, considered alongside the other regulatory changes, the new approach weakens the protections Congress intended the Endangered Species Act to provide.
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And this is where the legal battle becomes a much larger conservation conversation.
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Wildlife cannot be protected independently of the places wildlife needs to survive. A grizzly bear needs habitat in which to feed, reproduce and move. A California condor needs safe nesting and foraging areas. A whale depends upon functioning marine ecosystems and migration routes. Protecting an animal from deliberate injury addresses only part of what determines whether that species survives.
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That is why the meaning of “harm” matters—and why habitat has played such an important role in implementation of the Endangered Species Act.
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Enacted in 1973, the ESA has become one of America’s most consequential wildlife-protection laws and has played a role in the recovery of species including the bald eagle, California condor, grizzly bear and humpback whale. More than five decades later, the debate is not simply about the wording of federal regulations. It is about how a law designed to prevent extinction should operate when the greatest threat to an animal may be what happens to the place it calls home.
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Now 20 states and Washington, D.C. are asking federal courts to determine whether these new rules are consistent with that law. The administration maintains that its changes restore the ESA to the text and intent of Congress; the states contend they unlawfully weaken protections for species and habitat.
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The courts will decide those legal questions.
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For wildlife, the larger question is worth asking now:
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How much protection does a species lose when protection of the habitat it depends upon changes?
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Sources: Reuters, September 9, 2026; U.S. Fish & Wildlife Service; U.S. Department of the Interior; Washington State Attorney General
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