WA co-leads 21-state coalition challenging new rules under Endangered Species Act

OLYMPIA - The federal government enacted new rules under the Endangered Species Act (ESA) that rolled back habitat and threatened species protections in July. 

Washington's Attorney General Nick Brown announced Wednesday that he—alongside 3 attorneys general—is co-leading a 21-state coalition in two lawsuits aiming to keep endangered species protections in place. 

These states are suing the Trump administration's Fish and Wildlife Services (FWS) in the first lawsuit and both the FWS and National Marine Fisheries Service (NMFS) in the second suit. 

In Washington specifically, federal protections under the ESA directly affect the state's conservation of the Southern Resident orca population, which has declined since 1995, according to the AG's Office. 

Additionally, habitat protections under the ESA help conserve our state's salmon populations. 

"The federal government’s attempt to gut the Endangered Species Act threatens the habitats of orcas, sockeye salmon, and other endangered species that are part of our economy, culture and way of life," AG Brown said. 

Here's what the lawsuits are challenging

U.S. Fish and Wildlife Services (FWS) changes the definition of "harm"

The first lawsuit the 21-state coalition is filing, specifically challenges the decision to rescind the definition of "harm" in the ESA. 

In the ESA rule, it states, "We, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service… rescind the regulatory definition of "harm" in our Endangered Species Act (ESA or the Act) regulations. This rescission removes the regulatory definition of "harm" from the Code of Federal Regulations (CFR) in Title 50 parts 17 and 222." It also said the final rule is effective Sept. 14. 

Timeline:

In 1975, FWS published a final rule that defined "harm" as "…an act or omission which actually injures or kills wildlife, including acts which annoy it to such an extent as to significantly disrupt essential behavioral patterns…" 

Significant environmental modification or decreation was included within the meaning of "harm." 

In 1981, FWS redefined "harm" to "an act which actually kills or injures wildlife…" which could include habitat modification or degradation where wildlife is injured or killed by impalement of its behavioral patterns. 

1981 was the last time FWS edited their definition of "harm." 

The National Marine Fisheries Service specifically first defined "harm" in their regulations in 1999, which was similar to FWS's 1981 redefinition but worded it specifically for fish and wildlife. 

What they're saying:

The Attorney General argues that rescinding the definition makes it easier for habitats and species to be damaged or destroyed—Even if wildlife isn't injured or killed, their survival can still be threatened. 

"Under their new rules, degrading an animal's crucial habitat... would not count as harm. This doesn't make any sense. I think we all recognize that if someone destroyed or looted your home, it would be difficult for them to argue that they had not harmed you," AG Brown said at a press conference Wednesday. 

FWS and the National Marine Fisheries Service (NMFS) regulations and processes

The second lawsuit challenges FWS's rule changes that eliminate regulations automatically protecting newly listed threatened species, along with changes in designating areas as "critical habitats."

The lawsuit argues this rescinding increases the risk that newly threatened species will become endangered. 

The U.S. Department of the Interior (DOI) said in July that "moving forward, a ‘threatened’ species will be appropriately treated as ‘threatened,’ not "endangered…" 

The rule was created in the final months of the Biden administration. 

Additionally, the lawsuit challenges a separate rule that revised the process of designating areas as "critical habitats." 

The federal revision said the process will "follow the law and consider the economic, national security and other relevant impacts," and allows an area to be excluded from a "critical habitat" as long as the exclusion will not cause species extinction. 

What they're saying:

AG Brown and the other attorneys general argue this new process makes it easier for FWS to decline to include areas as "critical habitats." 

"Research shows habitat loss is the primary cause of species decline and the loss of these protections will harm Washington’s imperiled species," The AG's Office said. 

The other side:

In the initial July announcement from the U.S. Department of the Interior, the Trump administration said: "Using Gold Standard Science and common sense, the Service is returning to the best implementation of the Endangered Species Act that was successfully established under the first Trump administration." 

"Gold Standard Science" refers to what the White House refers to as the restoration of making government-funded research more transparent and reliable. This is defined in Executive Order 14303 from May 2025, where the Trump administration's policy framework is laid out. 

Here are the states involved in the lawsuit

Attorney General Nick Brown is co-leading the lawsuits with Attorneys General from California, Maryland and Massachusetts. 

Attorneys General from these states also joined the suits:

• Arizona
• Colorado
• Connecticut
• Delaware
• District of Columbia
• Hawai'i
• Illinois
• Michigan
• Minnesota
• New Jersey
• New Mexico
• New York
• Oregon
• Rhode Island
• Vermont
• Virginia
• Wisconsin

Here's what the ESA has protected nationwide

According to the AG's Office, the ESA protects millions of acres of critical habitat and more than 1,600 plant and animal species. 

AG Brown highlighted 99% of protected species have been saved from extinction under the law's passing, including the California condor, the grizzly bear, the peregrine falcon, the gray whale and the bald eagle. 

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