The Definition of “Harm” to Listed Species
The Endangered Species Act of 1973 (ESA) makes it unlawful for any person to “take” endangered or threatened species, and defines “take” to mean, among other things, “harass, harm, pursue, wound, or kill.” In 1975, the Secretary of the Interior (Secretary) issued a regulation defining harm to include “significant habitat modification or degradation where it actually kills or injures wildlife.”
The respondents in Babbitt v. Sweet Home Chapter of Communities For a Better Oregon alleged that, under the Secretary’s definition, they were unable to develop and log on their land due to the presence of northern spotted owls and red-cockaded woodpeckers listed as threatened under the ESA1. The respondents challenged the regulation on its face, alleging that the definition defied Congressional intent.
Supreme Court Majority Opinion
Justice Stevens wrote for a 6-3 majority that rejected the respondents’ claim. The majority:
- began its review with a basic dictionary definition of the disputed word, finding that “harm” requires hurt, damage, or injury, but does not specify whether the injury must be direct or indirect.
- then looked to the basic intent of the Act as stated in Section 2 of the ESA, which is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved. . . ,” and to the seminal case Tennessee Valley Authority v. Hill. In TVA the Court described the ESA as the most comprehensive endangered species protection legislation in the world and expressly recognized the Secretary’s definition of “harm.”
- found that these sources suggested a broad mandate to protect endangered species from both direct and indirect harm.
As further evidence of Congress’ approval of the Secretary’s definition, the Court looked to the legislative history of the 1982 amendments to the ESA. Congress had been aware of the Secretary’s definition and the Court’s application and chose not to alter it. Congress also had created a system to grant permits for incidental takings. If only direct takings had been intended to be covered by the word “harm,” creating incidental take permits would have been nonsensical.
Justice Scalia’s dissent relied on the statutory construction rule of noscitur a sociis, which holds that if several words in a list share an attribute, the other words can be assumed to share that attribute2. In the ESA’s definition of the word “take,” each term other than “harm” refers to direct action against an endangered species.
A hypothetical involving an endangered turtle in a pond referenced by both Justice Stevens and Justice Scalia illustrates the implications of the different interpretations. In the hypothetical, a landowner drains a pond that is the habitat of an endangered turtle for purposes other than killing the turtle. Under Justice Stevens’ majority interpretation, that would constitute harm under the ESA, while under Justice Scalia’s, it would not. The majority conceded that some harms would be so slight or indirect so as to not be a taking, but because the respondents mounted a facial challenge, the Court considered all possible indirect harms.
Both Affirm Secretary’s Broad Discretion in Administering ESA
Both the majority and dissent concluded that Congress granted the Secretary broad discretion in administering the ESA, which entitles the Secretary to deference.
1 Babbitt v. Sweet Home Chapter of Cmties. for a Greater Ore., 515 U.S. 687, 692 (1985).
2 Babbitt, 515 U.S. at 721-22