Trump eases ESA rules, accidental killing of endangered species may go unpunished

The Donald Trump administration has issued a new interpretation of the US Endangered Species Act that says killing endangered animals while logging a forest or building a dam would not be illegal unless the animals were specifically targeted. The move marks a major shift in how the landmark environmental law is enforced.

A directive sent this week to employees of the US Fish and Wildlife Service says imperilled animals or plants must be intentionally targeted for their killing to count as illegal. Until now, the agency had generally held people liable even when protected species such as grizzly bears, manatees and spotted owls were harmed accidentally.

Experts said the change could allow timber companies to log forests in the Pacific Northwest even if they knew imperilled birds nesting in the trees could be killed, or let developers build a dam knowing it would kill salmon. Dan Ashe, who led the Fish and Wildlife Service under former President Barack Obama, said, "This cuts against the entire history of the Endangered Species Act."

"It just creates a huge loophole," added Ashe, now president of the Association of Zoos and Aquariums. "It completely relieves people of any responsibility for their actions, even consequences that can be easily predicted."

Encouraged by Republican lawmakers and industry lobbyists, officials under Trump have moved to dismantle key parts of the law and make companies exempt from its rules. Administration officials have said they are returning the law to its original intent, following a 2024 Supreme Court decision that limited the authority of federal agencies to interpret environmental statutes passed by Congress. States and conservation groups have filed several lawsuits seeking to reverse the changes.

The latest interpretation of what it means to harm, or "take", a species was set out in a September 14 directive from Fish and Wildlife Service Director Brian Nesvik. "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, relies heavily on a dissenting opinion from former Justice Antonin Scalia in a 1995 Supreme Court case. It follows a new rule issued by the wildlife service in July that narrowed the definition of "harm" under the Endangered Species Act. In a statement on Thursday, the Interior Department, which includes the Fish and Wildlife Service, said Nesvik's directive would guide how that rule is enforced.

"Under the guidance, the ESA's prohibition on take continues to prohibit conduct including harassing, pursuing, hunting, shooting, wounding, killing, trapping, capturing or collecting protected wildlife," Interior Department officials said.

For decades, the government had defined harm to imperilled animals broadly to include encroachment on the places where they live. Environmental groups warned that the recent changes, if allowed to stand, would speed up extinctions by allowing protected species to be killed and opening the door to habitat destruction. "This is basically a free-for-all," said Noah Greenwald of the Center for Biological Diversity. "It's a radical reinterpretation that would put polluters and other industry before the natural world."

Federal officials have long worked with companies and individuals to reduce harm to species by preparing habitat protection plans and issuing permits for some incidental killings. Under the new interpretation, the only people who would need such permits 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 said some companies might still seek permits to protect themselves against changes by future administrations or against citizen lawsuits. The Endangered Species Act is credited with helping bring back animals including the bald eagle, American alligator and California condor from the brink of extinction. After several provisions were rolled back in Trump's first term, reversed under President Joe Biden and revived again in Trump's second term, the latest directive has added to the legal and political fight over how the law should be applied.