The Democratic attorneys general for 20 states and the District of Columbia have sued the federal government over three federal rule changes related to the Endangered Species Act that they say weaken protections for the nation’s most vulnerable plants and animals.
The group filed two lawsuits on Sept. 9 in the U.S. District Court for the Northern District of California.
The first suit challenges a rule published on July 14 by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service, also known as NOAA Fisheries, that removes the agencies’ regulatory definition of “harm.”
That definition had treated significant habitat modification or degradation that kills or injures wildlife as a form of prohibited “take” under Section 9 of the law. The Fish and Wildlife Service first adopted it in 1975, and the fisheries service adopted a similar one in 1999. Neither agency replaced it, and the new rule without this definition is set to take effect on Sept. 14.
The revised rule states that the word ‘‘take’’ should refer to an ‘‘affirmative act … directed immediately and intentionally against a particular animal,” not an act or omission that “indirectly and accidentally cause[s] injury to a population of animals.”
The Department of the Interior said in a statement to The Epoch Times on Sept. 11 that the states are trying to preserve an overreach that Congress never authorized.
“While we do not comment on pending litigation, the role of federal agencies is to faithfully implement the Endangered Species Act as written, not to expand its reach through interpretations favored by advocacy organizations,” Interior Department spokesperson Charlotte Taylor said.
“This lawsuit seeks to preserve a decades-old regulatory overreach that expanded the Endangered Species Act beyond the authority granted by Congress. The Department will vigorously defend its authority to implement the law according to its plain text.”
California Attorney General Rob Bonta levied criticism toward President Donald Trump in a statement announcing the lawsuit and said, “Caring for our wildlife and our environment is part of caring for our future.”
He added, “For over half a century, the [Endangered Species Act] has stood as a bipartisan example of what it means to protect an irreplaceable part of our planet, but these new rules attempt to destroy longstanding and integral regulatory protections and open the door to further species decline and possible extinctions.”
The second suit challenges two Fish and Wildlife Service rules published on July 21 that took effect Aug. 20. One ends the agency’s “blanket rule,” under which protections that automatically apply to endangered species were also automatically extended to newly listed threatened species. The agency will now write those protections on a species-by-species basis.
The other sets out a process for excluding particular areas from critical habitat designations and directs the agency to exclude an area whenever it finds the benefits of exclusion outweigh the benefits of inclusion, unless the exclusion would cause the species to go extinct.
“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,” Massachusetts Attorney General Andrea Joy Campbell said in a statement.
“As a mom, I will always work to preserve for the next generation the natural resources, economic opportunity, and public health benefits that come from the strong environmental protections the Trump Administration is attempting to strip away.”
Federal Agencies Outline Rule Changes
The agencies laid out their reasoning in the rules themselves. In the harm rule, they wrote that the longstanding definition “is not the single, best meaning of the text of the statute,” citing the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo and the dissent in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, a 1995 case that upheld the definition.
“The Services emphasize that the rescission of the regulatory definition of ‘harm’ does not diminish the importance of habitat loss or degradation as a significant threat to many species listed under the ESA,” the rule states.
“Habitat protection and conservation play a critical role in species conservation and recovery efforts.”
The agencies estimated the change would produce annualized cost savings of $361.3 million at a 3 percent discount rate and $521 million at a 7 percent discount rate, largely from reduced planning, negotiation, and mitigation costs tied to habitat conservation plans. They received about 358,000 public comments on the proposal.
The states argue in both complaints that the rules violate the Endangered Species Act and the Administrative Procedure Act, and that the agencies should have completed an environmental review under the National Environmental Policy Act. They also say the changes shift the cost of protecting listed species onto the states.
The harm rule answered that objection directly, saying states remain free to set protections stricter than federal law requires.
“States may make a policy decision to discontinue implementing more stringent species protections in order to relieve themselves of this additional burden,” it states. “Alternatively, states may choose to bear the increased costs that go along with their preferred policy preferences.”
The Fish and Wildlife Service’s Office of Communications and NOAA Fisheries each told The Epoch Times they do not comment on ongoing litigation.
The two lawsuits are co-led by the attorneys general of California, Maryland, Massachusetts, and Washington. They are joined by the attorneys general of Arizona, Colorado, Connecticut, Delaware, Hawaii, Illinois, Michigan, Minnesota, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, and Wisconsin.
