Rescission Of The “Harm” Rule: Where Do We Stand

As we previously reported, on July 14, 2026, the U.S. Fish & Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, Services) published a final rule to rescind the definition of “harm” from their Endangered Species Act (ESA) implementing regulations (Final Rule). In the preamble to the final rule, the Services contend that the interpretations of “harm” and “take” set forth by Justice Scalia in his dissent in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995) (Sweet Home) represent the best interpretations of those terms as used in the ESA. Under Justice Scalia’s interpretation, “take” applies only to an affirmative act that is intentionally and purposefully directed at a particular animal.