By David Wojick|
The huge cost of property development under the Endangered Species Act (ESA) is largely caused by an impossibly vague concept of “harming” a listed species.
This concept is not in the law, just in its misguided interpretation by the enforcing federal agencies. The law simply says that it is illegal to harm a listed animal without a permit to do so.
In other animal protection laws, harm means harm, that is directly impacting a protected animal. But under the ESA, the concept of harm has been interpreted enormously broader. “Harm” now means doing anything to the animal’s habitat that might someday adversely affect it.
This incredibly broad and vague concept is used by both the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) who jointly enforce the ESA.
Here is how NMFS puts it:
“NMFS interprets the term ‘harm’ as an act which actually kills or injures fish or wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, spawning, rearing, migrating, feeding, or sheltering.”
(“Endangered and Threatened Wildlife and Plants; Definition of ‘Harm’, Final Rule”)
While this sentence is in present tense, when it comes to a permit for property development, we are actually talking about the future, including the distant future, which makes it unworkable.
For example, suppose my property is sometimes visited by a migrating bird that is ESA listed; I want to cut down some trees and build a house. This act will “harm” one of these listed birds if it someday significantly impairs its migration.
There is no way to know today whether this will or will not ever happen, and that is the core problem with the Endangered Species Act. The same will typically be true for “breeding, spawning, rearing, feeding, or sheltering.”
A concept is vague when we cannot tell whether it applies to a given situation. This will be true for many, likely most, cases of property development and ESA “harm.” While there may be the potential for such injury, the definition requires actual injury, and whether that will ever occur in future is simply unknowable.
This is a very serious problem. The ESA only requires a property development permit if the development is harmful, but in many cases, it is impossible to know if this is so.
How is this fundamental vagueness being administered? This question clearly calls for an investigation, but here is my conjecture.
In impossible administrative situations, agencies typically default to something simple and feasible. In this case, that is to assume that if the animal is found on the property, then the maximum amount of feasible mitigation will be required. Mitigation here means doing expensive things to reduce the risk of injury.
Basically, they are substituting the mere risk of harm for the actual harm called for in the regulatory definition. In some cases, they might even assume that the risk of the animal being on the property sometime in the future is enough to require a development permit. The property being in the over 100 million acres of critical habitat might be sufficient to falsely trigger a permit requirement.
The Endangered Species Act says you need a permit to harm a listed animal. If the FWS and NMFS are in fact requiring property development permits based on the mere risk of possible future harm, that is an enormous case of illegal overregulation.
Congress and the Trump administration both need to look into this incredible situation. The impossibly vague definition of harm must be fixed so reasonable property development can proceed unmolested.
David,
Is this problem similar to the LNT, Linear No Threshold, theory that is often invoked with dose:harm relation with medications and radioactivity? That style is proving difficult to rationalise because it has intuitive appeal to the slowly growing group of people with a Green bent. Geoff S
And “Zero tolerance” for this and that.
Excellent analog. LNT is also an administrative simplification that avoids messy real science.
I think it was back in the 90’s that I saw a story about it being illegal in an area in California for homeowners to remove the dead brush around their homes. The reason was that it was habitat for the endangered Kangaroo Rat. One hadn’t been seen in the area for 50 years but it was still illegal.
(I’m 90% sure story came out after a wildfire had destroyed several homes in that area.)
Good example. The kangaroo rat is still listed.
One fiefdom on southern Vancouver Island required a permit to clear brush around houses, because more vegetation was needed.
But when advice on hardening houses against forest fire was publicized it graciously stopped charging to issue a permit.
OTOH, some building owners aren’t smart – they don’t grasp clearing brush, removing pine needles from roof gutters (proven near Kelowna BC years earlier), …… Driving through Barriere north of Kamloops BC in September 2003 I was amazed to see the spot distribution of which buildings had burned down. Yes, embers thrown around by wind – which fires themselves cause – were probably a factor.
I understand the future vagueness argument but tend to disagree that it is a big problem. The definition cited in the final rule necessarily went thru the full ACA process. It is what it is.
I think there are many other more important things for the administration to be focusing on during 47’s remaining time in office. Some examples include:
Observing the turgid pace of Executive and Legislative action on almost anything, and the lack of a unified 60-Republican caucus that can break a filibuster, I fear that none of these important actions will take place before the Democrats regain control of the House and the Senate.
I honestly do not think they will. Redistricting plus Dem drift to DSA likely means R at least keeps the house in 2026. Senate is messy but you will have Cornyn, McConnell, and Cassidy gone, which helps. Won’t ever get to filibuster proof, which is why 47 wants to get rid of the filibuster before the Dems do.
And 47 says a Vance/Rubio ticket (in either order) is unbeatable in 28. Given the likely Dem field, I agree with him. So hopefully there are at least 4 more years after 28 to work on the big agendas.
I agree with your hopeful summary. As bad as the NY politics are, they may actually benefit conservatives on a national level.
It is likely in your scenario that actions that take place will not be in the best interests of the country.
The Senate makes it’s own rules. Democrats under Harry Reid changed the rules to prevent the actual debates on the floor without yielding, which is what a filibuster is.
So, lazy Senators can now just count heads and stop everything instead of debating the issues and instead of commanding the floor. They can’t talk forever, so the filibusters are a time limited tactic.
Now, under present rules, they are not time limited. It’s doubtful to me that democrats will change their own tactics in the Senate to eliminate Reid filibusters in the future. They can’t explain that one away.
what a totally crap way for a parliament to function!
You boast no kings, I see no sense.
I am not claiming this is the most important issue in America, far from it. But the FWS and NMFS jointly proposed eliminating habitat modification from the interpretation of “harm” over a year ago. I just want them to do it. Not a monumental ask.
I did not know that. If they jointly proposed it, why didn’t they just follow through?
I didn’t know that either and haven’t kept up well with it but there is a difference between FWS and NMFS, the latter I had lots of experience with. Marine habitats came under different laws involving property with the often incremental conversion to terrestrial with some larger becoming barren with development, others changing the habitat. It was especially complicated in Louisiana where marsh could be in private ownership. Even in other states property was sometimes sold below sea level. NMFS made recommendations to the Corps of Engineers who required permits for such and NMFS used their water of consequence for their advice based on understanding of the area. The main coastal problem was the COE authority with the difficult limit to navigable waters which caused problems well into FWS territory. States also established their own ‘EPA’ equivalent. Much of this is well discussed in Mitsch, W. J. and J. G. Gosselink. 1993. 2nd Ed. Wetlands. Van Nostrand/Reinhold. 722p; 2007. 4th Ed., 2015 ;5th Ed. John Wiley, Hoboken, NJ.
Mitigation and later restoration seemed reasonable but difficulties were missed, especially in following up and application of the species concept. Lack of homework sounds familiar. I taught a course in Environmental Assessment and Management, which used to be properly considered as separate subjects, but now research often lacks the distinction. You can’t apply something until you understand it. Marine ‘ecological’ papers too often now end with bragging how well their work can apply to the system. Example from end of abstract–“This study provides guidance for selecting appropriate ecological indicators and underscores the need to integrate ecological, social, and economic dimensions of coastal marsh ES [Ecosystem Services] to better support management and policy strategies.” Such experts they be as former reviewers would have said!
The current ‘ruling theory’ of pollution should be actually more correctly applied to the period after WWII with seldom mention of amounts of lost oil and pollutants. It was largely taken care of before the 1980s problems which included education with affirmative action, now dei descendant, overproduction of college graduates, loss of research independence and the other messes covered here. Examples– Carter, L. J. 1970. Galveston Bay: Test case of an estuary in crisis. Science. 167:1102-1108. Ward, G. H., Jr. and N. E. Armstrong. 1997. Alterations in the water quality of Galveston Bay on a time scale of decades. Proc. State of Bay. Tex. Nat. Res. Conserv. Com. III:13-18.
No idea but here is the proposal:
https://www.federalregister.gov/documents/2025/04/17/2025-06746/rescinding-the-definition-of-harm-under-the-endangered-species-act
Certainly with the massive budgets we have, these many issues are orthogonal and can be addressed.
What is the “Canada problem”?
Canada.
As in the USA, Charles, not all Canadians are avid supporters of their incumbent government(s).
While Trudeau and his Liberals were a near cert in all polling to unceremoniously get the boot in 2025, Trump’s “threats to Canada’s sovereignty” boosted by the media in the leadup gave legions of disaffected, deserting Liberal voters a ready excuse to flick the switch to “patriotism”, and wave the flag for “savior” Carney.
Plus, the piss-poor 69% voter turnout in 2025 did not help bring about the results all parties’ supporters were hoping for.
Uncertainty and confusion reigned in voter land, and to a large extent, swings in polling suggests that is still the case.
All in all, I’d say that the Canadian situation is a case of “Fear And Loathing In Le Nord”, brought about by an unusual set of circumstances.
Serious hat: It has become extremely fun to make light of Canada, given their reaction to Trump’s hilarious framings.
Non-serious hat: Can you say Stanley Cup and Olympic Hockey, Men’s and Women’s?
I’m always amused at how people of all backgrounds get so triggered by DJT’s wind-ups.
He often wings it with audiences and especially his despised media characters.
Mind you, it’s sometimes a challenge to figure out if he’s “havin’ a laff” or being serious.
I’ve learned to always look at what people DO, rather than what they flap their gums about.
As far as I can make out, DJT is doing pretty much what he said he was going to do.
With hockey, I’ve never been able to figure out the rules or the field positions or the plays.
Same with soccer.
And now I figure I’m too old to learn.
Rugby on the other hand is “the game they play in heaven” 🙂
Besides, in the time I have left, I find it more fun to come here and debate with Nick.
(He’s a worthy intellectual adversary for a simple-minded, under-educated bloke like me. But jeez, for a bloke so smart, he frustrates me over his dedication to the whole wind / solar / batteries crap.
Hope you’re reading this comment, Nick old mate 🙂 ).
Which rugby? The gentleman’s game played by bastards or the bastards game played by gentlemen?
League or Union, I’ve played them both and watch them both.
What you listed are important, priorities maybe.
But The Deep State has deep roots.
They can be trimmed a little at time by putting the right “pruners” in the right positions without neglecting the things you mentioned.
(And, US citizen voters remember, none of the “good” stuff will happen unless a majority in both the House and Senate (less the RINOS) are maintained in the midterm elections.)
I would add, every attempt at reducing the deep state, requires it to divert its massive but dwindling resources in that direction, so death by a thousand cuts, may apply here.
‘the Canada problem.’ ???
Canada supplies huge quantities of metals, fertilizer, food, and technology to the United States.
With much northbound flow of goods and services as well.
Automobile manufacturing by the Detroit Three is integrated.
There are subjects needing sorting out, two are industry prop-up coercion:
Both countries subsidize some industries (dairy by the US).
Decades ago automotive manufacturing by the Detroit Three was integrated.
Some vehicles are made only on one country, depending in part on what plants need more work or need refurbishing and new tooling. The Dodge Caravan minivans for example were initially made only in Canada, as popularity increased a plant was added in the US.
Parts are made in both countries and shipped to plants in the other.
(A wild case however was the Ford Crown Victoria getting classified as not a Canadian or American made car.
What??
Ford had sourced enough parts outside of the two countries to have 50% content made elsewhere.
Parts like transmissions, windshields, …. were made in Europe or Mexico.
Under this definition, no wind farm or concentrated solar facility should ever been approved.
Pont, game, set, match.
Actually such harms are not maybes, could conceivably happen in the future, but are proven harms now.
No they just get incidental take permits, which being gold plated they can afford. A lot of the permits are to wind farms.
As I said before, we need a grassroots videoing of the windfarms killing eagles, etc.
Videos sent back to a central location to document the kills. Then make them public.
Anthony got some response with the Surface Station Project.
I think the leaders of the “Green” thing projects already know. But do their members?
From having taken 2 Hillsdale College Constitution online courses, I learned that beginning around the time of Woodrow Wilson that, mostly German influenced elitists, democrats of the time sought to diminish our Constitution, replacing it with the “Administrative State” where (ideally) the people decide what they want, and Administrative State’s un-elected bureaucrats would (ideally) decide how to make it happen. But government corruption was ignored. Since Wilson, several democrat Administrations have been all too effective at making this totally corrupt methodology the way our gov’t actually works. <– This is the Deep State, AKA, the swamp; that no matter the party of the current administration, the Deep State will assure that we are on a Pink-O Commie path.
Examples: the obama Administration’s EPA declared CO2 to be a pollutant – leftist commie bureaucrats driving their agenda no matter what. Fighting US voter ID is a another Deep State construct.
We must return entirely to the Constitution, while “We The People” still has meaning.
‘We must return entirely to the Constitution, while “We The People” still has meaning.’
Good luck. Notwithstanding the grade-school civics lessons on ‘checks and balances’, the only real check on Federal power and overreach was the right of the people of each of the several / sovereign states to nullify laws that were not passed ‘pursuant’ to the Constitution.
Ironically, after waging a long and successful campaign against ‘states rights’ in the courts in order to implement their agenda, the Left, with the assistance of an increasingly out of control Federal judiciary, now routinely nullify valid Federal immigration laws, among many others, in most of the states they control.
“the only real check on Federal power and overreach was the right of the people” to bear arms.
The Constitution provisions provide the means for overthrowing a tyranny, via “well armed militia.”
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Do not misconstrue. I 100% agree with Frank.
Hope you all are aware of COS (Article V; Convention of States) – the 2nd of the only 2 ways that our federal gov’t can pass laws, and which has never been used (it’s time). This organization: https://conventionofstates.com, is working to build a sufficient consensus of states so that these sane states can ignore Congress and pass laws, taking our legislative process back to the states and closer to We The People. Nineteen of the states have passed the COS Resolution, there are 6 states working approval. It takes 34 states to call the convention and 38 to ratify any amendments that are proposed.
Article V
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
… and the results show, the beauty of state rights, as the economic and life style disaster of deep Blue cities is a red flag to any rational person. NY, we are watching you.
Con law was my favorite course at Harvard Law. I fear the two Hillsdale courses you took online are less about con law than about Hillsdale political views.
As an example you use, Mass. v. EPA did NOT rule CO2 a pollutant. It only said the CAA gave EPA that right if it so chose. Under Obama it did, under Trump it just didn’t, and in a factual way that will withstand legal challenges.
SCOTUS has moved a long way in recent years (enabled by 45’s justice choices) toward clarifying (IMO improving) current con law. Some examples:
Rud, do you have counsel on how far the current democratic TDS lawfare can go, or more directly, how it can be reigned in. Yes, they eventually lose most battles at the SC level, but then continue to file a “new” version of an attack on national policy.
Hope you all are aware of COS (Article V; Convention of States) – the 2nd of the only 2 ways that our federal gov’t can pass laws, and which has never been used (it’s time). This organization: https://conventionofstates.com, is working to build a sufficient consensus of states so that these sane states can ignore Congress and pass laws, taking our legislative process back to the states and closer to We The People. Nineteen of the states have passed the COS Resolution, there are 6 states working approval. It takes 34 states to call the convention and 38 to ratify any amendments that are proposed.
Article V
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
All those “vague” concepts as sustainability, harm, endangerment, climate change … are made on purpose : to be weaponized in order to fulfil a globalist agenda.
So many of these laws passed were written by lawyers.
Would they still be working in any law firm if the contracts they drew up were so vague?
well it has been said that there is no such thing as a clear law, and litigation tends to prove this.
“Harm” now means doing anything to the animal’s habitat that might someday adversely affect it.”
You mean like installing a wind turbine ??
Sure but they can afford an incidental take permit. Most people cannot.
Technically anything on the planet can harm a specific animal’s habitat.
Therefore we need to have all US military, ground, sea, and air, return to the States to be decommissioned, disarmed, disbanded.
Fly a jet. Oops, that poor mouse in Minnesota.
And also, no more interstate commerce.
No international shipping.
All of those have chaos theory derived impact on the Spotted Owl’s habitat.
It does not take much to stretch the idiocy and you can bet activists will have the gullible lining up and cheering.
More over reach by crappy ill informed government.
If human beings move somewhere that has allegedly not been inhabited before then dogs and cats move there too.
What does the act say about domestic and farm animals?
If stopping “ecocide” is their goal, wouldn’t they have to give up on windmills and solar panels?
I think that the most humourous riposte to all of this that I have ever seen was a bumper sticker which read:
Every time a Dodge Hellcat starts, a spotted owl dies
So, how does one get a incidental take permit on the species homo sapiens?
We are, after all, part of the ecosystem.
Ecocide must, necessarily, account for the incidental taking of humans.
First, I’ll observe that eco-catastrophists underestimate creatures and vegetation.
They are often adaptable, opportunistic – even aggressive. I see plants growing out of cracks in paving – dirt collects, rain moistens it, bingo! life grows.
E-Cs also assume no change to environment occurs ever, but Darwin explained otherwise. On the midwet coast of North America E-Cs flap about Spotted Owls which supposedly require old growth forests to live. They eat rodents – squirrels normally as they live in conifer forests. But spotted owls live in other areas and have been found nesting in highway underpasses and on restaurant signs: hint, availability of food like mice and rats (rodents) who feed on food discarded by humans.
There is a ‘problem’ of Barred Owls which are better at finding food and more aggressive thus in competition with Spotted Owls – but…. the two varieties are interbreeding!
And the game of E-Cs who slice and dice on geography and political boundaries until they find a population small enough to call threatened – never mind many live next door. There’s a problem on southern Vancouver Island with creatures and plants who are at the northern end of their range of viability. Never mind that Arbutus trees grow south into Baja and Garry Oak trees grow south into California. (Arbutus are often called Madrone in the US, Garry Oaks typically called Oregon White Oak.)
E-Cs here also limit their counts to Canada, guaranteed to be low with those species.
I left out seeds in the dirt.
Though some plants grow by putting runners out as much as by seeds – trembling aspen trees and strawberry plants for example.
At my old residence, a very small ivy-like plant climbs a stucco wall.
Crows are an example of smarts and adaptability, surviving well in cities. They keep their young with them through their first winter when death rate for birds is high – Great Blue Herons don’t.