By rescinding the expansive regulatory definition of “harm” under the Endangered Species Act and returning to Justice Scalia’s narrower textual reading that limits “take” to direct actions against individual animals, federal agencies have struck a blow for property rights, reduced unnecessary land-use controls, and restored freer market incentives.
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In July 2026, the U.S. Fish and Wildlife Service FWS andNational Marine Fisheries Service NMFS finalized a rule rescinding the longstanding regulatory definition of “harm” under the Endangered Species Act ESA Dating to the mid-1970s, the previous rule determined that significant habitat modification or degradation was a form of “taking” if it impaired essential behaviors like breeding, feeding, or sheltering and thereby killed or injured wildlife. The agency’s new and narrower reading from the late Justice Scalia’s dissent ensures “take” refers to affirmative acts directed at particular animals such as killing, capturing, or wounding. This would be more consistent with the ordinary and historical meaning of the term, as habitat modification alone no longer qualifies as “prohibited take” under the regulation. Scalia’s dissent correctly observed that treating diffuse, unintentional habitat effects as “harm” stretches the term far beyond its companions and the traditional legal meaning of “take” applied to wild animals.
In ordinary terms, “take” covers a broad range of actions that can disturb, injure, chase, catch, or kill a protected animal. It is currently not limited to deliberate hunting, intentional killing, or any affirmative conduct and includes extremely broad categories like habitat changes. The ESA makes it unlawful to take a listed animal without a permit. The new narrower reading will alter this to require affirmative conduct directed at particular animals rather than indirect effects.
Regulation should track what Congress actually wrote in law, not decades of agency expansion. Broad habitat-based liability created uncertainty, permitting costs, and litigation risk for landowners whose activities were never directed at animals protected under the ESA
The rule change substantially reduces the ESA’s endless red tape and de-facto land-use restriction on private property.This rulemaking does not repeal the ESA, critical-habitat designations, or Section 7 consultation duties for federal actions; it simply stops treating ordinary private land uses (building, farming, timber, etc.) as presumptive “takes” solely because they alter habitat.
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This newfound clarity immensely improves incentives. When landowners face lower risk that routine activities will be recharacterized as illegal “takes,” they can invest, develop, or conserve more efficiently rather than navigating costly legal consultations or defensive under-use of land.In short, the change restores a tighter textual interpretation, ends an expansive use of the ESA as private land-use control, eases a documented constraint on housing construction with large cumulative and ongoing effects.
Seemingly minor regulatory changes like this can have immense impact.
Research indicates that the prior interpretation of the ESA eliminated 6.3 million housing units, or roughly 4% of the 2025 U.S. stock, mostly in high-demand metro areas and coastal California. Back-of-the-envelope projections suggest this could raise annual housing permits by 100,000 or more units nationally. That’s a huge deal, as the U.S. is currently facing a housing shortage of an estimated 7.2 million units. More housing supply directly addresses the current shortage, which especially harms young Americans via scarcity, high prices, reduced labor mobility, and related welfare losses.
Paradoxically, this regulatory change may actually help prevent the unnecessary killing of endangered animals.
The old broad “harm” rule created a perverse incentive best described by economists as “Shoot, shovel, and shut up.” The intention of the ESA was to protect endangered species, but too often the result was to incentivize private landowners who discovered or feared discovering an endangered species to simply kill the animals. Having an endangered species on their property often meant facing severe restrictions on land use, development, farming, or timbering because habitat modification itself counted as illegal “take.” After all, landowners knew that if the FWS or NMFS became aware of the species the value of their land would be greatly reduced due to a plethora of bureaucratic restrictions. To avoid costly permits, lawsuits, devalued land, or locked-up property rights… some simply killed the animals, buried the evidence, and stayed silent rather than report them or conserve habitat.
This unintended consequence of the ESA was extremely common, but under Scalia’s reading, narrowing “take” to direct, affirmative acts against individual animals means ordinary land-use activities no longer automatically trigger ESA liability merely because protected species are present. The regulatory threat that previously punished coexistence is massively reduced. Landowners therefore have less reason to eliminate animals preemptively and more reason to tolerate, report, or even encourage them…especially since many listed species depend heavily on private land. This shifts incentives from secret destruction toward voluntary stewardship, which can produce better real-world outcomes for the species than a rule that drove them underground!
