The Trump administration has implemented significant changes to how the Endangered Species Act is enforced, marking what observers characterize as the most aggressive attempt to weaken the law since its establishment in 1973. The shifts center on two key terms: the definition of “take,” which refers to killing an animal, and “harm,” which previously included habitat destruction.
Under the new interpretation, the U.S. Fish and Wildlife Service now permits the killing of federally protected animals provided the deaths were unintentional. Additionally, a directive issued earlier this week redefines “harm” to exclude habitat damage, meaning that logging, mining, or other industrial activities no longer legally constitute harm to endangered species. The agency justified this position through a memo signed by Fish and Wildlife Service Director Brian Nesvik, which stated that actions such as a vessel inadvertently striking a whale or felling a tree containing bats would not constitute illegal “takes” unless those outcomes were the explicit purpose.
Conservation attorneys and environmental advocates argue this interpretation represents an unprecedented narrowing of the law’s scope and contradicts five decades of established legal precedent. In 1995, the Supreme Court ruled in Babbitt v. Sweet Home that habitat modification qualifies as harm under the Endangered Species Act, a principle that guided agency enforcement through subsequent administrations. The current administration’s approach aligns instead with a dissenting opinion from the late Justice Antonin Scalia, despite the majority’s contrary ruling.
Legal experts anticipate immediate court challenges. Nearly two dozen states have already filed lawsuits challenging the administration’s revisions, and environmental groups are expected to file additional cases. Some legal analysts question the durability of the new memo, noting that a 2024 Supreme Court decision gave courts rather than agencies the authority to interpret environmental statutes, potentially limiting the administration’s ability to enforce its preferred reading without judicial validation.
The changes have created uncertainty for industries accustomed to decades of settled legal rules. While some corporate interests may welcome reduced restrictions, others face the prospect of regulatory instability should courts overturn the new interpretation or a subsequent administration restore prior protections.
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