The Trump administration is planning a massive change to the legal interpretation of the Endangered Species Act (ESA), proposing that any incidental harming or killing of a threatened or endangered species would no longer be considered illegal under that law.
The New York Times reported that Brian Nesvik, director of the US Fish and Wildlife Service, had issued a memorandum on September 14 explaining to FWS staff that the ESA’s prohibition on unauthorized “take” applies only to affirmative acts intentionally and purposefully directed at a particular animal.
Advocates argue that most of the threats to these species are not from the direct hunting or killing of an animal, like a humpback whale or a sea turtle, but as a result of federally permitted activities that put the species at risk while carrying out another action, such as commercial fishing or oil and gas drilling.
The unintentional or incidental killing of an endangered whale, for example, would no longer be considered illegal, even if it was easily foreseeable.
The Nesvik memo, obtained by the Center for Biological Diversity, states:
“A vessel that inadvertently strikes a whale has not taken it, because the vessel’s course was not set against the whale. Felling a tree is not a take of the bats roosting in it unless the tree is felled for the purpose of killing or capturing them.”
The new directive goes substantially beyond the administration’s recent elimination of the longstanding regulatory definition of “harm.” It declares that prohibited “take” requires an intentional act directed at a particular animal that directly and immediately affects that animal.
Former Federal Wildlife Officials’ Response
Seven former heads of the US Fish and Wildlife Service and NOAA Fisheries, appointed by presidents of both parties, have released the following joint statement opposing the administration’s reinterpretation:
“We haven’t always seen eye to eye. But when you’ve spent your career watching species come back from the edge, you develop a clear sense of what keeps wildlife alive. Stripping habitat protections and eliminating accountability for death of endangered species will lead to the extinction of some of America’s most iconic wildlife.
“You can’t save endangered species by taking away the protections that keep them alive. When a species goes extinct, we don’t get a second chance.”
The statement comes from seven former agency leaders who administered the ESA across four presidencies – the Obama, Clinton, Biden and Bush administrations – at the US Department of Interior and the National Oceanic and Atmospheric Administration:
- Daniel Ashe, Former Director of the US Fish and Wildlife Service under the Obama Administration
- Jamie Rappaport Clark, Former Director of the FWS under the Clinton Administration
- Janet Coit, Former Assistant Administrator for National Oceanic and Atmospheric Administration (NOAA) Fisheries under the Biden Administration
- H. Dale Hall, Former Director of the FWS under the Bush Administration
- Eileen Sobeck, Former Assistant Administrator for NOAA Fisheries under the Obama Administration
- Martha Williams, Former Director of FWS under the Biden Administration
- Steven Williams, Former Director of FWS under the Bush Administration.
Environmental Advocates’ Response
Oceana Vice President Beth Lowell said:
“The proposed changes to the Endangered Species Act will remove the core safeguards that have prevented the extinction of 99% of species protected under the act. Federally permitted activities that incidentally injure and kill endangered species currently need to take into account their unintended impacts on wildlife, including nesting beaches for sea turtles or North Atlantic mother and calf pairs as they swim to their feeding grounds. These changes upend the Endangered Species Act’s balance of economic activity and needed protections, pushing species to the brink of extinction.”
Brett Hartl, government affairs director at the Center for Biological Diversity, said:
“This stabs at the very heart of the Endangered Species Act by giving federal approval to the killing of some of America’s most beloved wildlife. The Trump administration is desperate to annihilate environmental protections, but this incredibly radical measure is both cruel and profoundly unlawful. Killing endangered wildlife is illegal, whether that’s your purpose or not.”
Defenders of Wildlife President and CEO Andrew Bowman said:
“This memorandum — and other recent Endangered Species Act regulatory rollbacks such as the recission of the longstanding interpretation of “harm” — make clear that the Trump administration has declared an all-out war on America’s wildlife. The administration’s absurdly narrow statutory reinterpretation hamstrings the ESA’s effectiveness and makes a mockery of our nation’s half-century commitment to saving and recovering America’s imperiled wildlife.”
Bowman added:
“This reinterpretation flies in the face of the ESA’s plain language and common sense, as well as Congress’s intent more than 50 years ago in enacting the ESA to achieve the goal of protecting and fully recovering listed species.”
The FWS memo follows the Trump administration’s rescission of the regulatory definitions of “harm” under the ESA, which took effect this week.
In July, environmental advocates warned the final rule could open the door to widespread destruction of habitat for endangered wildlife — defying a decision by the US Supreme Court on the matter.
