Killing endangered animals during activities such as logging a forest or constructing a dam would no longer be treated as a crime unless the animals were deliberately targeted, under a sweeping new interpretation of the Endangered Species Act (ESA) by President Donald Trumps administration that fundamentally reshapes enforcement of the landmark environmental law.
According to The Associated Press, a directive circulated this week to employees of the U.S. Fish and Wildlife Service (FWS) instructs that imperiled animals or plants must be intentionally targeted for their deaths or injuries to qualify as illegal under the ESA.
That represents a decisive break from the agencys longstanding practice, under which individuals and companies could be held liable for incidental take accidental harm to protected species such as grizzly bears, manatees, or spotted owls that occurred as a foreseeable consequence of industrial or development activity.
Legal and environmental experts say the change could effectively shield timber companies that log forests in the Pacific Northwest even when they know their operations will kill threatened birds nesting in those trees, or allow developers to build dams despite clear evidence that such projects will kill salmon.
Experts said the change would allow timber companies to log forests in the Pacific Northwest even if they knew that doing so could kill imperiled birds nesting in the trees, or for developers to build a dam knowing it would kill salmon, the original analysis noted, underscoring the breadth of the policy shift.
Former Fish and Wildlife Service Director Dan Ashe, who served under President Barack Obama, warned that the new approach undermines the very foundation of the ESA.
This cuts against the entire history of the Endangered Species Act, said Ashe, who now serves as president of the Association of Zoos and Aquariums.
Ashe argued that the directive opens a vast regulatory gap that could be exploited by industries whose activities predictably harm wildlife.
It just creates a huge loophole, he added, stressing that It completely relieves people of any responsibility for their actions, even consequences that can be easily predicted.
The Trump administrations move comes after years of pressure from Republican lawmakers and industry advocates who have long contended that the ESA has been weaponized to block economic development and infringe on property rights.
Encouraged by those lawmakers and lobbyists, officials have worked systematically to pare back what they view as regulatory overreach, seeking to ensure that companies are not burdened by expansive interpretations of environmental statutes that Congress never explicitly endorsed.
Administration officials maintain that they are restoring the ESA to its original statutory meaning, particularly in light of a 2024 Supreme Court decision that sharply curtailed the power of federal agencies to stretch the language of environmental laws beyond what Congress clearly authorized.
By narrowing the scope of what constitutes an illegal take, they argue, the government is aligning enforcement with both the text of the law and the Courts directive that agencies may not invent new obligations through creative interpretation.
States led by Democratic officials and a coalition of conservation groups have responded with a flurry of lawsuits aimed at blocking or reversing the administrations ESA revisions.
They contend that the new interpretation will accelerate species decline and extinction by allowing habitat destruction and foreseeable killing of protected wildlife to proceed with little or no federal constraint.
The latest reinterpretation of harm or take under the ESA is spelled out in a September 14 directive from Fish and Wildlife Service Director Brian Nesvik.
The new interpretation of what it means to harm or take a species was detailed in a Sept. 14 directive from Fish and Wildlife Service Director Brian Nesvik, the document states, signaling that the agencys field staff will now be guided by a much narrower standard.
Nesviks directive uses a concrete example to illustrate the new threshold for liability under the ESA.
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, Nesvik wrote, adding that the bats would only be impacted indirectly and accidentally.
The directive, first reported by The New York Times, leans heavily on a dissenting opinion written by the late Justice Antonin Scalia in a 1995 Supreme Court case involving the ESA.
Scalias dissent argued for a more literal and limited reading of take, emphasizing intentional acts against animals rather than broader, indirect harms arising from land use or development an approach now being embraced by the Trump administration.
This policy guidance follows a July rule issued by the Fish and Wildlife Service that already narrowed the regulatory definition of harm under the ESA.
Nesviks memo effectively operationalizes that rule, explaining how field offices should apply the new standard in real-world permitting and enforcement decisions, according to a Thursday statement from the Interior Department, which oversees the FWS.
Under the guidance, the ESAs prohibition on take continues to prohibit conduct including harassing, pursuing, hunting, shooting, wounding, killing, trapping, capturing or collecting protected wildlife, Interior Department officials said.
By emphasizing these direct actions, the department signals that traditional forms of poaching and overt persecution remain illegal, while incidental impacts from otherwise lawful activities will largely fall outside the ESAs reach.
For decades, federal regulators had interpreted harm broadly to include significant habitat modification or degradation that actually kills or injures wildlife by impairing essential behaviors such as breeding, feeding, or sheltering.
That expansive reading allowed the government to intervene when logging, mining, energy development, or large-scale construction projects threatened to wipe out critical habitat, even if the developers did not specifically intend to kill protected animals.
Environmental organizations warn that abandoning this broader approach will hasten the disappearance of already imperiled species by giving industries a green light to destroy habitat and proceed with projects that they know will cause lethal impacts.
Environmentalists warn the recent moves, if allowed to stand, will speed extinctions by letting protected species be killed and opening the door to habitat destruction, the report noted, capturing the alarm among conservation advocates.
Noah Greenwald of the Center for Biological Diversity, a prominent environmental group, described the new policy in stark terms.
This is basically a free for all, said Noah Greenwald with the Center for Biological Diversity, an environmental group. Its a radical reinterpretation that would put polluters and other industry before the natural world.
Historically, federal officials have sought to balance economic activity with species protection by working cooperatively with landowners, developers, and energy companies.
They have crafted habitat conservation plans and issued permits for incidental take, allowing some level of accidental harm in exchange for mitigation measures and long-term conservation commitments.
Under the new interpretation, however, the universe of actors who would need such permits shrinks dramatically.
Under the new interpretation of the law, the only people needing such a permit would be those acting directly against animals, such as hunters, trappers, anglers and perhaps pesticide users, said Sandi Snodgrass, an attorney with Holland and Hart in Denver whose clients include developers, energy companies and utilities.
Snodgrass noted that, despite the narrower liability standard, some companies may still opt to seek permits as a hedge against legal and political uncertainty.
But Snodgrass said some companies may still seek permits to guard against changes by future administrations or to protect themselves against citizen lawsuits, the report added, reflecting a recognition that regulatory pendulums can swing back under different political leadership.
The Endangered Species Act, enacted in 1973 with broad bipartisan support, has long been credited with rescuing iconic American wildlife from the brink of extinction.
The Endangered Species Act is credited with bringing back iconic animals including the bald eagle, American alligator and California condor from the brink of extinction, the article observed, underscoring the laws historic role in conservation.
Conservatives, however, have increasingly argued that the ESA has drifted far from its original mission, becoming a tool for expansive federal control over private land and a barrier to responsible economic growth.
They point to cases where minor habitat designations or speculative species listings have stalled infrastructure, energy, and housing projects, imposing heavy costs on communities and landowners with little measurable benefit to wildlife.
Republicans rolled back several ESA provisions during Trumps first term, only to see those changes reversed by President Joe Bidens Democratic administration.
Republicans rolled back several provisions of the law in Trumps first term, only to have those moves reversed under Democratic President Joe Biden, then revived yet again during Trump's second term, the report recounted, illustrating the partisan tug-of-war over environmental regulation.
From a conservative standpoint, the latest reinterpretation of take reflects a broader effort to restore constitutional limits on the administrative state and to respect the separation of powers.
By anchoring the policy in Supreme Court precedent and in Justice Scalias textualist reasoning, the administration is signaling that agencies must enforce the law as written, not as environmental activists or bureaucrats might wish it to be.
Critics on the left portray the move as a giveaway to polluters and other industry, but supporters argue that it simply prevents unelected officials from inventing new liabilities that Congress never approved.
They contend that genuine conservation success depends less on punitive regulation and more on cooperative partnerships, technological innovation, and market-driven incentives that align economic growth with stewardship of the land.
The debate over the ESAs future is likely to intensify as lawsuits advance and as new projects test the boundaries of the administrations narrower interpretation.
At stake is not only the fate of individual species, but also the question of who sets the rules for balancing environmental protection with human prosperity elected lawmakers accountable to voters, or regulators and judges extending statutes far beyond their original scope.
For now, industries that have long chafed under the ESAs broad incidental take doctrine see an opening to move forward with projects that were once mired in red tape, while environmental groups brace for what they fear will be a wave of habitat loss and species decline.
Whether the courts ultimately uphold this shift, and whether Congress chooses to revisit the ESAs language in light of modern realities, will determine whether this sea change in enforcement endures or becomes another chapter in the ongoing struggle over environmental policy and federal power.
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