The Alternative to “Harm” in the ESA “Take” Claims

Wildlife agencies recently finalized major changes to regulations interpreting the Endangered Species Act (ESA). These regulations remove longstanding habitat protections for endangered and threatened species. To better protect wildlife and to solidify habitat protection’s role in Section 9 ESA litigation, conservation groups should bring more claims arguing that proposed projects “harass” wildlife by changing or destroying their habitat. This Note explores the potential effectiveness of “take” claims that allege “harass,” rather than “harm,” in the habitat modification context.