SJRES-204-119
Read twice and referred to the Committee on Environment and Public Works.
Sponsored by Adam Schiff (D-CA)
What it does
This joint resolution would use the Congressional Review Act (CRA) to nullify a rule issued by the U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) on July 14, 2026. That rule rescinded the longstanding regulatory definition of "harm" under the Endangered Species Act (ESA), which had included significant habitat modification or degradation as a form of prohibited harm to protected species. If this resolution passes, the agencies' rescission rule would have no force or effect, and the prior definition of "harm" — including habitat destruction — would be restored.
Who benefits
Conservation and environmental organizations that rely on broad ESA protections. Endangered and threatened species whose habitat would receive continued federal protection. State and local governments that use ESA protections to limit development near sensitive ecosystems. Recreational industries (ecotourism, fishing, hunting) dependent on healthy wildlife populations. Future generations who may benefit from preserved biodiversity.
Who is hurt
Landowners and developers whose projects involve habitat modification on or near protected species habitat, who would face continued regulatory restrictions. Timber, mining, agriculture, and energy industries that operate in areas with listed species. Rural communities whose economic activity depends on land development or resource extraction. Property owners who may face reduced land-use flexibility without compensation. States that prefer narrower federal environmental jurisdiction over private lands.
Supporters argue
Supporters argue that the habitat-modification definition of "harm" has been the cornerstone of ESA enforcement for decades, upheld by the Supreme Court in Babbitt v. Sweet Home Chapter (1995), and that removing it would gut protections for hundreds of listed species by allowing habitat destruction to proceed unchecked. They contend that habitat loss is the leading driver of species extinction in the U.S., and that stripping this definition would render the ESA largely ineffective for the vast majority of species that depend on intact ecosystems rather than direct take.
Opponents argue
Opponents argue that the original habitat-modification rule represented an expansive agency interpretation that stretched the ESA's text beyond what Congress authorized, effectively converting private land-use decisions into federal regulatory matters without clear statutory basis. They contend that post-Loper Bright (2024), courts no longer defer to agency readings of ambiguous statutes, and that the agencies' rescission was a lawful correction of an overreach — meaning this resolution would restore a legally vulnerable rule that imposes significant costs on landowners and industries without explicit congressional authorization.
Constitutional context
The ESA's "harm" definition implicates the Commerce Clause (Art. I, §8, cl. 3) as the basis for federal regulation of species on private land, and the Takings Clause (5th Amendment) when habitat restrictions limit property use. The Supreme Court upheld the habitat-modification definition in Babbitt v. Sweet Home (1995), but post-Loper Bright (2024), courts now independently assess whether agency rules have clear statutory authorization rather than deferring to agency interpretations — placing the restored definition under heightened judicial scrutiny.
Checks and balances
Congress would gain authority by nullifying an executive agency rule; the CRA also bars agencies from issuing a substantially similar rule without new congressional authorization, limiting future executive action on this definition.
Historical precedent
The Supreme Court upheld the FWS habitat-modification definition of "harm" in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995), affirming that significant habitat modification causing actual species injury qualifies as prohibited "take" under the ESA.