734
Scalia, J., dissenting
The second point the Court stresses in its response seems to me a belated mending of its holding. It apparently concedes that the statute requires injury to particular animals rather than merely to populations of animals. See ante, at 700, n. 13; ante, at 696 (referring to killing or injuring "members of [listed] species" (emphasis added)). The Court then rejects my contention that the regulation ignores this requirement, since, it says, "every term in the regulation's definition of 'harm' is subservient to the phrase 'an act which actually kills or injures wildlife.' " Ante, at 700, n. 13. As I have pointed out, see supra, at 716-717, this reading is incompatible with the regulation's specification of impairment of "breeding" as one of the modes of "kill[ing] or injur-[ing] wildlife." 5
5 Justice O'Connor supposes that an "impairment of breeding" intrinsically injures an animal because "to make it impossible for an animal to reproduce is to impair its most essential physical functions and to render that animal, and its genetic material, biologically obsolete." Ante, at 710 (concurring opinion). This imaginative construction does achieve the result of extending "impairment of breeding" to individual animals; but only at the expense of also expanding "injury" to include elements beyond physical harm to individual animals. For surely the only harm to the individual animal from impairment of that "essential function" is not the failure of issue (which harms only the issue), but the psychic harm of perceiving that it will leave this world with no issue (assuming, of course, that the animal in question, perhaps an endangered species of slug, is capable of such painful sentiments). If it includes that psychic harm, then why not the psychic harm of not being able to frolic about—so that the draining of a pond used for an endangered animal's recreation, but in no way essential to its survival, would be prohibited by the Act? That the concurrence is driven to such a dubious redoubt is an argument for, not against, the proposition that "injury" in the regulation includes injury to populations of animals. Even more so with the concurrence's alternative explanation: that "impairment of breeding" refers to nothing more than concrete injuries inflicted by the habitat modification on the animal who does the breeding, such as "physical complications [suffered] during gestation," ibid. Quite obviously, if "impairment of breeding" meant
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