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Trump Administration Quietly Overhauls Endangered Species Act Enforcement, Drawing From Scalia’s 1995 Dissent

Internal memo directs Fish and Wildlife staff to ignore incidental harm to protected species, only targeting intentional killings

By LineZotpaper
Published
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An internal memo quietly distributed to US Fish and Wildlife Service field offices has directed staff to radically reinterpret the Endangered Species Act, instructing them to prohibit only actions that specifically intend to harm an animal rather than those that inadvertently cause death or injury — a move that blindsided conservationists and echoes a 1995 dissent by the late Supreme Court Justice Antonin Scalia.

According to a New York Times report, the September 14 memo from FWS Director Brian Nesvik instructs field staff to effectively look the other way when private interests cause preventable deaths of vulnerable animals. Previously, habitat modifications that injure animals or cause accidental deaths were considered prohibited “takes” under the ESA. Under the new interpretation, only actions “specifically intending to target an animal” would be penalized.

“A vessel that inadvertently strikes a whale has not taken it because the vessel’s course was not set against the whale,” Nesvik’s memo stated. “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.”

The reinterpretation draws legal inspiration from Justice Scalia’s 1995 dissent in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, in which he argued that the ESA’s prohibition on “taking” endangered species should only apply to intentional, direct actions rather than habitat modification that incidentally harms wildlife. The administration’s move effectively adopts that minority view as agency policy without seeking congressional approval or public comment.

Conservation groups were caught off guard by the memo, with several expressing alarm that the change would gut protections for species already threatened by habitat loss, ship strikes, and industrial activity. Legal analysts expect immediate court challenges arguing that the reinterpretation violates the plain text and intent of the ESA.

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Analysis

Why This Matters

  • Drastically reduces protections for endangered species by exempting common causes of death such as collisions, deforestation, and pollution — unless the actor specifically intended to kill the animal.
  • Shifts enforcement burden from industry to regulators, who would now need to prove intent, a near-impossible standard in most cases.
  • Could set a precedent for other conservation laws to be quietly reinterpreted through internal agency memos rather than formal rulemaking.

Background

The Endangered Species Act of 1973 prohibits the “take” of listed species, defined as “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.” The definition of “harm” has long included habitat modification that actually kills or injures wildlife, a reading upheld by the Supreme Court in Babbitt v. Sweet Home (1995). In that case, Justice Scalia dissented, arguing that “harm” should require a deliberate act aimed at an animal. The new memo adopts Scalia’s minority view as agency policy — a legal shift that had been advocated by property-rights and industry groups for decades.

Key Perspectives

Conservationists: Argue the memo eviscerates the ESA’s core protections and will lead to increased mortality for whales, sea turtles, birds, and other vulnerable species. They view it as an illegal, backdoor rollback that bypasses Congress and public input. Industry and Property-Rights Advocates: Have long argued that the current interpretation imposes excessive burdens on landowners, developers, and fishermen. They support the narrowing of “take” as a return to the statute’s original intent. Legal Scholars: Expect immediate litigation over whether an agency can unilaterally change a long-settled definition without formal rulemaking under the Administrative Procedure Act.

What to Watch

  • Lawsuits filed by environmental groups challenging the memo’s validity and the process by which it was issued.
  • Congressional hearings or oversight actions, particularly if Democrats gain leverage.
  • Whether FWS field staff follow the directive in practice or whether internal resistance slows implementation.
  • Potential expansion of the policy to other agencies, such as NOAA Fisheries for marine species.

Sources

Zotpaper

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