21 states challenge Endangered Species Act rule changes in two lawsuits
Rule ChangesWashington co-leads coalition targeting 'harm' definition and critical habitat rules
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Overview
Updated 1 hour agoHabitat destruction that kills endangered wildlife no longer counts as 'harm' under a July federal rule change. Twenty-one states filed two lawsuits Wednesday to overturn it, arguing the rewrite strips the law of its primary habitat protection tool.
Washington Attorney General Nick Brown co-led the coalition with California, Maryland, and Massachusetts. The suits target three rule changes affecting species like Southern Resident killer whales and Pacific salmon, whose survival depends on intact habitat.
Why it matters
If the rules stand, developers and energy companies can degrade endangered species habitats without triggering penalties under a law protecting more than 1,600 species.
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People Involved
Organizations Involved
Interior Department agency that administers the Endangered Species Act for land and freshwater species.
Commerce Department agency that administers the Endangered Species Act for marine and anadromous species.
Lead plaintiff and coordinator of the 21-state coalition challenging the federal rules.
Timeline
December 1973 September 2026
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21 states file two lawsuits
Latest LegalCoalition led by Washington, California, Maryland, and Massachusetts sues FWS and NMFS over the rule changes.
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Final rules published in Federal Register
RegulatoryFWS and NMFS publish rules rescinding 'harm' definition, ending automatic threatened species protections, and changing critical habitat process.
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Loper Bright ends Chevron deference
LegalSupreme Court overturns Chevron, ending automatic court deference to agency interpretations.
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Southern Resident killer whales listed as endangered
RegulatoryNMFS lists the Southern Resident orca population under the ESA.
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Sweet Home v. Babbitt upholds habitat protections
LegalSupreme Court rules 6-3 that habitat modification can count as 'harm' under the ESA.
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Endangered Species Act signed into law
LegislationPresident Nixon signs the ESA, creating federal protections for species at risk of extinction.
Historical Context
3 moments from history that rhyme with this story — and how they unfolded.
Sweet Home Chapter of Communities v. Babbitt (1995)
The Supreme Court ruled 6-3 that the Interior Department's definition of 'harm' under the Endangered Species Act could include habitat modification that injures or kills listed wildlife. Logging companies and landowners challenged the definition as an overreach.
The habitat-modification definition survived, cementing habitat protection as a core ESA enforcement tool.
For three decades, the definition required federal agencies to consider how development projects degrade listed species' habitats.
The 2026 rule rescinds exactly this definition. The states argue Sweet Home is binding precedent the agencies cannot ignore.
2019 ESA regulatory revisions
The 2019 Trump administration finalized rules narrowing the 'foreseeable future' standard for threatened listings and easing economic analysis requirements for critical habitat. Environmental groups sued.
Courts later vacated portions of the rules, and the changes were partially reversed or revised.
The 2019 changes foreshadowed the sharper 2026 rollback.
The 2026 changes go further, rescinding the 'harm' definition outright and eliminating automatic protections for threatened species, making this challenge sharper than the 2019 round.
Loper Bright Enterprises v. Raimondo (2024)
The Supreme Court overturned Chevron deference, which had required courts to defer to agencies' reasonable interpretations of ambiguous statutes. The decision shifted interpretive authority from agencies to judges.
Agencies lost the benefit of the doubt in statutory interpretation disputes.
Regulatory challenges now turn on plain-text readings of statutes rather than agency expertise.
The states argue the ESA's plain text supports habitat protections. Without Chevron, the court must decide that meaning itself.
