Episode 179. The ESA Harm Rescission: Ecologically Disastrous and a Trap for Companies Attempting to Destroy the Wild — with Earthjustice’s Ben Levitan
July 24, 2026
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Ben Levitan, senior attorney at Earthjustice. Photo by Matt Roth / Earthjustice.
About
Ben Levitan is a senior attorney at Earthjustice, the nation’s largest and most active public interest environmental law organization — know for its motto “Because the Earth needs a good lawyer.” As part of Earthjustice’s Biodiversity Defense Program, Ben advocates for the protection of imperiled species and ecosystems and opposes attempts to weaken environmental laws. His portfolio includes conserving mature and old-growth forests on federal lands and safeguarding habitat for migratory shorebirds. Before joining Earthjustice in 2021, Ben worked at Environmental Defense Fund, where he focused on reducing air pollution from the power sector.
Show Notes
In this episode of the Rewilding Earth podcast, Earthjustice Senior Attorney Ben Levitan sits down with Host Jack Humphrey to unpack the U.S. federal government’s decision to rescind the regulatory definition of “harm” under the Endangered Species Act (ESA). By stripping away the explicit protection that prevents developers, loggers, and mining operations from destroying critical habitat, the administration has created a dangerous regulatory vacuum.
Ben explains why this move is not only ecologically disastrous and wildly unpopular, but also a massive legal trap for any corporation attempting to take advantage of it. Because statutory law passed by Congress holds ultimate authority over agency regulations, destroying habitat remains a federal offense. Ben breaks down the ongoing legal battles, the role of public comments in building an unshakeable court record, and why frontline litigators defending the natural world are playing the long game to ensure our wild places remain protected.
Key Takeaways & Topics Covered
- Attack on Habitat Protection: How federal agencies quietly published Friday afternoon releases removing habitat destruction from the legal definition of “harm” under the ESA.
- Marbled Murrelet Example: A real-world look at how this rule change attempts to permit old-growth logging as long as a nesting bird isn’t physically in the tree at the moment it falls.
- Statutory Supremacy: Why executive rollbacks cannot override the actual text of the ESA or the Supreme Court’s landmark 1995 Sweet Home decision.
- A Legal Trapline for Industry: Why corporations stepping into this regulatory “Wild West” face severe financial liability, citizen lawsuits, and catastrophic public relations fallout.
- The Power of 358,000 Public Comments: How public opposition (99 percent against the rollback) creates an administrative record that lawyers use to dismantle unlawful policies in court.
- Rebuilding Better: Looking ahead to how conservationists and legal teams can use this moment to restore environmental protections and build stronger, more resilient frameworks for the future.
Extra Credit
- Get involved and support Earthjustice’s defense of the natural world
- Take action on behalf of wild nature here
- Learn more about the Endangered Species Act
Director of Digital Outreach (D.O.D.O.) for The Rewilding Institute
Host and Producer of the Rewilding Earth Podcast
Jack started Rewilding work as Executive Director of Sky Island Alliance in the mid-1990’s, organizing the Sky Island Wildlands Network design, ripping up illegal roads on forest service lands, installing wolf acclimatization pens on Ted Turner’s Ladder Ranch & conducting howling surveys to help make way for the final stage of the Lobo reintroduction program in the Southwest.
Through the years, Jack has worked with Dave Foreman and the Rewilding Gang to further Rewilding initiatives and education.