Freedom of Alaska

The Trump administration changes course on regulatory interpretations relating to the scope of protections for endangered and threatened species and migratory birds.

By Nikki Buffa, Jennifer K. Roy, Lucas I. Quass, and Samantha K. Seikkula

Federal agencies took steps in April 2025 to narrow (i) habitat protections for federally listed endangered or threatened species under the Endangered Species Act (ESA) and (ii) the scope of liability for incidental take of migratory birds under the Migratory Bird Treaty Act (MBTA). These actions were taken in line with the Trump administration’s broader efforts to identify regulations that may be changed under the Supreme Court’s decision overruling the Chevron doctrine in Loper Bright Enterprises v. Raimondo,1 the April 9, 2025, presidential memorandum titled “Directing the Repeal of Unlawful Regulations,” and Executive Order 14154, titled “Unleashing American Energy” (see our blog post on that order).

Proposed Rescission of Endangered Species Act Regulations Defining “Harm”

On April 17, 2025, the US Fish & Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) published a proposed rule to rescind the regulatory definition of “harm” in their respective ESA regulations.2 Under the ESA, it is illegal to “take” an endangered species, which includes actions that “harass, harm, pursue, hunt, shoot, wound, trap, capture, or collect” species. (16 U.S.C. § 1532(19).) The current USFWS and NMFS ESA regulations interpret “harm” to include “significant habitat modification or degradation” that “actually kills or injures” species “by significantly impairing essential behavioral patterns,” including breeding, feeding, or sheltering. (50 C.F.R. § 17.3; 50 C.F.R § 222.102.)

As the proposed rule notes, the Supreme Court previously upheld USFWS’s “harm” regulation pursuant to the Chevron doctrine that afforded agencies deference in promulgating regulations interpreting statutes.3 The proposed rule applies Loper Bright, which overruled the Chevron doctrine and calls for an assessment of whether the statute at issue authorizes the agency’s regulation. Accordingly, the proposed rule explains USFWS and NMFS have concluded that the regulations’ current definition of “harm” does not match the “single, best meaning of the statute” — e.g., of the ESA’s definition of “take.”4

The proposed rule adopts Justice Scalia’s interpretation as the “single, best meaning of the statute,” providing that the “definition of ‘harm’…should be construed to require 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 proposed rule also states that because the ESA itself defines “take,” a “replacement definition” for “harm,” which is a “subcomponent” of the “take” definition, “is unnecessary in light of the comprehensive statutory definition.”5

The proposed rule addresses whether environmental review will be conducted in connection to the rulemaking, which may have provided additional opportunities for public comment. The agencies take the position that because the recission “is compelled by the best reading of the statutory text,” it is a “nondiscretionary action” that does not trigger environmental review under the National Environmental Policy Act.6

The proposed rule states that the revision will only apply prospectively, and “would not affect permits that have been granted as of the date the regulation becomes final.”7

The proposed rule is currently in a 30-day public comment period; comments must be received by May 19, 2025.

Environmental groups said they may challenge the rule in court if it is adopted.8 If implemented as proposed, the rule could significantly impact project permitting by altering the scope of ESA requirements. The rule could also lead to changes regarding when consultation is required under some circumstances and the role of habitat protections in incidental take coverage.

Long Battle Continues Over “Take” Under the Migratory Bird Treaty Act

On April 11, 2025, the Department of the Interior took steps to reinstate policies adopted during the first Trump administration to narrow potential liability under the Migratory Bird Treaty Act. MBTA regulations currently protect 1,107 species of migratory birds.9 Among the nation’s oldest conservation laws, the MBTA imposes criminal liability for taking protected birds, which can occur in the ordinary operations of a wide variety of industries and activities. The issue of whether the MBTA prohibits incidental (i.e., accidental) take of migratory birds in the course of carrying out otherwise lawful activities has been a topic of controversy. Competing interpretations of the MBTA have taken shape during each of the past three administrations and in federal courts, with the scope of liability under the MBTA potentially differing depending on the federal appellate circuit where the violation occurs.

The Solicitor for the Department of the Interior issued a legal opinion in 2017 that withdrew and replaced an earlier Obama administration legal opinion and limited the scope of the MBTA’s provisions against take to only extend to conduct intentionally injuring migratory birds. The 2017 opinion stated that unintentional or incidental injury or death of migratory birds was not prohibited under the MBTA based on the text, history, and purpose of the MBTA. USFWS introduced a proposed rule to this effect in 2020 (see our blog post describing the MBTA history, this opinion and rulemaking). A federal judge in the Southern District of New York ultimately struck down the 2017 opinion as arbitrary and capricious.10 In January 2021, the USFWS published a final rule limiting the MBTA’s prohibition on “takings” to purposeful actions resulting in the injury or death of a migratory bird. The Biden administration revoked the 2021 rule and 2017 opinion and, in October 2021, took steps to begin a rulemaking process that would instead codify the interpretation that the MBTA extends to incidental take. (86 Fed. Reg. 54667.)

The Trump administration changed the government’s interpretation on April 11, 2025, restoring its 2017 interpretation of the MBTA, removing the MBTA’s application to the accidental injury or killing of birds. The one-page opinion cites Executive Order 14154, titled “Unleashing American Energy,” which directs the heads of each federal agency to “suspend, revise, or rescind all agency actions identified as unduly burdensome,” rescinding the Biden opinion for this reason. The 2025 opinion states that the 2017 opinion is “authoritative and binding” on the Department of the Interior, but because the Southern District of New York vacated the 2017 opinion, the 2025 opinion provides a carveout for actions taken in that jurisdiction. Consistent with the 2025 opinion, on April 21, 2025, the USFWS withdrew the Biden administration’s advanced notice of proposed rulemaking.

Accordingly, the recent 2025 opinion continues the oscillation between administrations on the interpretation of the MBTA as it relates to incidental take. Legal challenges to the reinstatement of the 2017 opinion are likely to follow, which may create a further patchwork application of the MBTA. California also responded to the 2017 opinion when it was first adopted by establishing, as a floor, protections for migratory nongame birds afforded by the federal rules and regulations in effect as of January 1, 2017 (see our blog post). Other states may considering taking a similar approach. Planning for the financing, development, or operation of projects should take into account these potential developments.

Latham & Watkins will continue to monitor this area.

  1. 603 U.S. 369, 400 (2024) (Loper Bright). See our Client Alert on Loper Bright and blog post on deregulation actions, including consideration of sunsetting of Bald and Golden Eagle Protection Act regulations. ↩︎
  2. 90 Fed. Reg. 16102, available at https://www.govinfo.gov/content/pkg/FR-2025-04-17/pdf/2025-06746.pdf. ↩︎
  3. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995) (Sweet Home). ↩︎
  4. 90 Fed. Reg. at 16103. ↩︎
  5. 90 Fed. Reg. at 16103. ↩︎
  6. 90 Fed. Reg. at 16104. ↩︎
  7. 90 Fed. Reg. at 16103. ↩︎
  8. See https://apnews.com/article/trump-endangered-species-act-habitat-protection-rule-a4c5663a5e49cc0325665edc338263b4. ↩︎
  9. See 50 C.F.R. § 10.13 for the complete list. ↩︎
  10. Nat. Res. Def. Council, Inc. v. U.S. Dep’t of the Interior, No. 18-CV-4596 (VEC), 2020 WL 4605235, at *7 (S.D.N.Y. Aug. 11, 2020). ↩︎