An internal memo from U.S. Fish and Wildlife Service Director Brian Nesvik shows the agency’s plan to rewrite the definition of “take” under the Endangered Species Act (ESA), effectively allowing unintended harm to or killing of threatened wildlife.
“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,” Center for Biological Diversity Government Affairs Director Brett Hartl said in a release. “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.”
If the rule is adopted, only intentional harm to ESA-listed species would be considered illegal and punishable under the law – a radical departure from decades of ESA enforcement.
“The proposed changes to the Endangered Species Act will remove the core safeguards that have prevented the extinction of 99 percent of species protected under the act,” Oceana Vice President Beth Lowell said in a statement. “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.”
The change could have massive ramifications for the nation’s commercial fisheries, where incidental take of endangered animals is a frequent concern. According to Nesvik’s memo, a vessel accidentally striking and killing an endangered whale, for example, would no longer be considered take.
“A vessel that inadvertently strikes a whale has not taken it, because the vessel’s course was not set against the whale,” the memo states.
NOAA Fisheries considers vessel strikes to be one of the main threats to the recovery of whales listed under the ESA.
“With this memo, the administration is telling every industry in America that killing endangered wildlife is fine as long as it wasn’t their primary goal,” Natural Resources Defense Council Senior Vice President for Nature Andrew Wetzler said in a release. “But unintentional harm is exactly what is driving many species toward extinction. Whales get hit by ships. Bats lose the trees they roost in. Sea turtles drown in nets. Pesticides drift onto pollinators’ habitats. Limiting the law’s scope to intentional harm, like hunting, would utterly gut ESA protections and put countless species on a path to extinction – all to line the pockets of industry executives.”
Environmental law firm Earthjustice said it plans to sue the administration over the change.
“The government’s new legal position is a prescription for extinction. It says that as long as you claim you didn’t mean to kill an endangered species, the law can’t and won’t stop you. That’s ridiculous – and a totally illegal, active misreading of the Endangered Species Act. We’ll see the Trump administration in court about this,” Earthjustice Attorney Ben Levitan said in a statement.
The leaked memo comes shortly after the Trump administration redefined the word “harm” under the ESA to remove consideration of the habitat a threatened species needs to survive. Under the Trump administration’s reinterpretation of the rule, it’s permissible for a developer to remove all the habitat an animal needs to survive, leading to its death, as long as the developer doesn’t directly harm or kill the animal. The change is being challenged in court by attorneys general from 21 states.
