The Endangered Species Act's Definition of "Harm" Dies the Same Day an Internal Memo Narrows the Law to Intentional Killing Only — 21 Attorneys General Sue, With Connecticut's William Tong Saying Trump Is "Sacrificing Entire Species for Short-Term Corporate and Political Gain"
Two things happened to the Endangered Species Act on September 14, 2026. A final rule rescinding the federal government's longstanding regulatory definition of "harm" — the definition that counted habitat destruction as harm to a protected species — took effect. And, according to an internal memo obtained by The New York Times and reported on September 17, Fish and Wildlife Service Director Brian Nesvik signed guidance reinterpreting the 1973 law so that only *intentional* harm to an individual animal or plant violates it. Accidental killings and injuries arising from economic activity would not. Together the two changes strip the Act of the mechanism environmental lawyers have relied on since the Supreme Court upheld the habitat reading in *Babbitt v. Sweet Home* (1995): the ability to treat destroying a species' home as harming the species. Five days before the rule took effect, on September 9, a coalition of 21 state attorneys general — co-led by Massachusetts AG Andrea Campbell and Washington AG Nick Brown — filed two lawsuits in the Northern District of California against the Fish and Wildlife Service and the National Marine Fisheries Service, seeking to block both the rescission of the "harm" definition and a companion rule stripping automatic protection from newly listed threatened species. Species named in the complaints include the piping plover, the shortnose sturgeon, the leatherback sea turtle and the Southern Resident killer whale, whose population has fallen from 98 whales in 1995 to 74 today. Separately, Sens. Adam Schiff (D-CA) and Sheldon Whitehouse (D-RI) have introduced a Congressional Review Act resolution that would repeal the rule, though it has no path to the floor before the midterms.
“From the beaches of Cape Cod to the peaks of the Berkshire mountains, Massachusetts' diverse landscapes support thousands of unique plant and animal species that are essential to the health of our environment.”