Trump administration moves to let accidental killing of endangered species go unpunished

The U.S. Fish and Wildlife Service is preparing to reinterpret the Endangered Species Act so that only the intentional killing or wounding of a protected species counts as a violation, according to an internal memo obtained by The New York Times and reported by Common Dreams. The memo, dated September 14 and signed by Fish and Wildlife Service Director Brian Nesvik, would exclude accidental deaths from enforcement under the 1973 law.

Common Dreams’ reporting on the memo notes that the shift would carry outsized practical weight because the killing of endangered animals rarely happens on purpose. Protected species are far more likely to die incidentally, struck by vehicles, caught in fishing gear, poisoned by pesticides or displaced by construction and drilling, than through deliberate acts of poaching. Limiting liability to intentional harm would remove legal consequences for most of the ways protected animals actually die in the course of economic activity.

Harvard Law School lecturer Andrew Mergen, who spent decades enforcing environmental law at the Justice Department, said the memo would gut the statute’s practical force. “What the administration is proposing to do is take all of the force out of what we have all understood the act to mean,” Mergen said, according to Common Dreams.

The memo arrived the same day a separate rollback took effect: a rule rescinding the federal government’s longstanding regulatory definition of “harm” under the Endangered Species Act, which had counted habitat destruction as a form of harm to protected species. Without that definition, agencies and courts have less basis to block logging, drilling, mining or construction projects on the grounds that they degrade habitat endangered species depend on to survive.

The Interior Department announced the harm-definition rollback in July, framing it as a return to the law’s plain text. “For years, federal agencies abused the ESA to obstruct lawful land use and burden American families and businesses,” Interior Secretary Doug Burgum said in a department press release. Commerce Secretary Howard Lutnick said the change would end regulations “that have restrained our fishermen for too long.” Fish and Wildlife Service Director Nesvik said in the same release, “We can protect species and respect communities at the same time.”

Sens. Adam Schiff of California and Sheldon Whitehouse of Rhode Island have introduced a Congressional Review Act resolution seeking to overturn the harm-definition rollback, while Reps. Brian Fitzpatrick of Pennsylvania and Mike Quigley of Illinois have introduced legislation aimed at restoring the habitat protections, according to Common Dreams.

The Endangered Species Act, signed into law in 1973, is credited by federal wildlife officials with helping prevent the extinction of species including the bald eagle, the American alligator and the gray whale. Congress wrote the law’s central prohibition, the “take” of a listed species, to cover harassing, harming, pursuing, wounding or killing a protected animal, without limiting it to intentional acts. Nesvik’s memo and the rescinded harm definition would together narrow that standard to require proof of intent, according to Common Dreams’ reporting on the two changes. Both changes came from the same agency within the same administration, in the same week, without a new vote in Congress.