Audrey Ernst

Associate Editor

Loyola University Chicago School of Law, JD 2028

Foundational values of American property law have been brought to the forefront with recent rule making in the post-Chevron Deference era, leading to the erosion of conservation regulation in favor of the rights of landowners. With 70% of all endangered species’ habitats falling on private land, agency regulations now seek an alternative approach to conservation.

In July 2026, the U.S. Fish and Wildlife Service (USFWS) issued a final rule under Section 9 of the Endangered Species Act (ESA), redefining harm within the statute and simultaneously altering private property rights within the scope of the ESA. The new rule rescinded habitat modification or degradation from the well-accepted interpretation of harm under the ESA. Harm was promulgated into the statutory definitions of the ESA to describe the prohibited taking of an endangered species. Although the rescission of one part of the definition of harm under the ESA seems negligible, the change represents further deregulation of private land use that could have extensive impacts on the ability to enforce protections for endangered species’ habitats.

Setting the stage for the recission of harm from the 2026 rule

Prior to the 2026 ruling, the USFWS’s regulatory authority over private land was already being reshaped by a series of Supreme Court rulings and legal challenges. The inclusion of habitat degradation in Section 9 of the ESA’s definition of harm was originally contended by landowners in the 1995 case, Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon, where the Supreme Court majority sided with the USFWS’s decision to include habitat degradation within the ESA’s definition of harm. The Court relied on the Chevron deference in making their decision, which directed courts to defer to an agency’s reasonable interpretation of ambiguous statutory terms.

Despite the Chevron Deference, in 2018, the Supreme Court in Weyenhaeuser Co. v. U.S. Fish and Wildlife Service restricted USFWS’s Section 4 authority under the ESA, ruling that a habitat may not be designated as critical, and thus fall under the protection of the ESA, if it does not currently support an endangered species. This overturned the agency’s broad interpretations of habitats, which included habitats that possessed a future capacity to house an endangered species, while simultaneously reviving weakened land market value and private development. While this ruling partially restored the balance between property rights and conservation, Section 4 itself provides no direct enforcement power over private land activities, while section 9 does contain enforcement power, creating further impacts by the 2026 Section 9 recission rule.

The debate over agency interpretation reached its peak in Loper Bright Enterprises v. Raimondo, where the Supreme Court overturned the Chevron deference. In Loper Bright Enterprises, the Court held that judiciaries must provide interpretations of vague terms within a statute rather than deferring to an agency’s interpretations. Because the inclusion of habitat degradation in the definition of harm in Section 9 was based on agency interpretation and not explicit statutory text or court interpretation, this led to its removal from the definition of harm within the ESA.

The harm of Loper Bright Enterprises

The 2026 ruling triggered an immediate Administrative Procedure Act lawsuit from the combined effort of four conservation groups and 21 state attorneys general. One group, the Defenders of Wildlife, contends that the authority to enforce protections of wildlife habitats is highly intertwined with the protection of species on the verge of extinction.

However, the USFWS has sought summary judgment in defense of the 2026 rule. After this rule’s issuance, the USFWS maintains the power to regulate private land through the authority to grant federal permits and bring injunctive, civil, and criminal enforcement actions against private landowners who have harmed endangered species on their land. However, while the previous inclusion of habitat degradation allowed for proactive habitat protection, the remaining authority under the ESA requires proof of direct physical harm to a species before the USFWS is allowed to act. This appears to shift the agency’s regulatory capabilities from a preventative to a reactive framework.

The balance between conservation regulation and private land use rights

Conservation of wildlife remains a concern, but deregulation of private land use under the ESA could open the door to commercial interests that overtake the protective intent of the ESA. While the 2018 Weyenhauser decision may have struck a needed balance between the interests of private landowners and the intentions of the ESA, the deregulatory nature of the 2026 ruling risks placing commercial interests ahead of conservation.

As noted by the Defenders of Wildlife, the destruction of endangered species’ habitat in favor of land-altering industries leaves the species vulnerable to the destruction of potential habitats and their extinction. While the ruling does not directly harm an endangered species, it allows private landowners to make detrimental changes to an endangered species’ habitats without providing the agency with a means to prevent this. If the rule remains in place, the enforcement authority to prevent habitat destruction remains limited. Deregulation provided by this rule may allow for landowners and those with commercial interests in land to prioritize financial incentives to alter land upon which endangered species live. While conservation efforts require some level of collaboration between private individuals and the federal regulators, the deregulatory nature of the 2026 rule seems to neglect the authority of the EPA in the protection of endangered species through essential habitat regulation in favor of the rights of  landowners.