The Trump administration appears to have quietly removed a key protection from the Endangered Species Act (ESA). The New York Times obtained an internal memo that changes the interpretation of the law’s language surrounding the killing or injury of an endangered animal.
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The Times reports that the memo indicated the accidental killing or injury of an animal would no longer be considered illegal — only actions purposely taken to target certain animals would. That change could have a major impact since endangered animals are most often only killed or injured by accident in the U.S.
The administration told the newspaper that the ESA continues to protect endangered wildlife.
What’s changed
Fear No Fact.
There are 495 U.S. animal species currently listed as endangered under the Endangered Species Act.
Prior to this memo, if a protected animal was accidentally hurt or killed during commercial activity, like logging or land development, it was still illegal. Now, a memo dated Sept. 14 that was reportedly circulated to U.S. Fish and Wildlife Service offices nationwide effectively says accidents are just that — accidents.
The issue specifically centers around the interpretation of what it means to “take” an animal. Currently, the ESA defines “take” as meaning “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”
Now, according to The Times, the memo reads, “A vessel that inadvertently strikes a whale has not taken it, because the vessel’s course was not set against the whale. 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.”
Under existing rules, permits are required for any activities that could result in the incidental killing or injury of endangered species — called incidental take permits.
For example, a real estate development company looking to build on land where an endangered species lives could apply for this type of permit. It would allow for a certain amount of incidental harm and require the company to take conservation measures to reduce their potential impact. The memo does not say whether those permits will still be required.
Other Trump administration changes
In July, the Trump administration repealed a regulatory statute that’s been in place for decades, protecting certain wildlife habitats as part of the ESA. It revised the “critical habitat” designation process and allows an area to be excluded from a “critical habitat” designation if that exclusion will not cause the extinction of the species.
At the same time, the Interior Department – which oversees Fish and Wildlife Services — got rid of a Biden-era “blanket rule.”
“The blanket rule created a default for all ‘threatened’ species that incorrectly treated them as ‘endangered,’ unless an exception was made with a specific 4(d) rule,” the Interior Department said. “Moving forward, a ‘threatened’ species will be appropriately treated as ‘threatened,’ not ‘endangered.’”
Those changes officially took effect Monday. Environmental groups and a coalition of 20 states and Washington, D.C., challenged them in court.
In a separate move, the Trump administration rescinded the definition of “harm” under the ESA.
When The Times asked the Interior Department about the new memo, it did not respond directly, but instead, the department’s media office wrote that “the Endangered Species Act continues to prohibit take of endangered wildlife, including actions that harass, pursue, hunt, shoot, wound, kill, trap, capture or collect listed wildlife, or attempts to do so.” It also said that the rescinded definition of “harm” did not eliminate the prohibition on take.