BILLINGS, Mont. — Killing endangered animals while logging a forest or building a dam would not be considered illegal unless the animals were specifically targeted, under a new interpretation of the Endangered Species Act by President Donald Trump's administration that marks a sea change in how the landmark environmental law is enforced.
A directive sent to U.S. Fish and Wildlife Service employees this week says imperiled animals or plants must be intentionally targeted for their killing to be considered illegal.
That's a sharp turnaround from past practice at the wildlife service, which historically held people liable even for accidentally harming protected species such as grizzly bears, manatees and spotted owls.
Former Fish and Wildlife director says the change ‘creates a huge loophole’
Experts said the change would allow timber companies to log forests in the Pacific Northwest even if they knew that doing so could kill imperiled birds nesting in the trees, or for developers to build a dam knowing it would kill salmon.
“This cuts against the entire history of the Endangered Species Act,” said Dan Ashe, who led the Fish and Wildlife Service under former President Barack Obama.
“It just creates a huge loophole,” added Ashe, who is 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 endangered species law and make companies exempt from its regulations. 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 numerous lawsuits seeking to turn back the changes.
The directive follows a rule change defining ‘harm’ under Endangered Species Act
The new interpretation of what it means to harm — or “take” — a species was detailed in a Sept. 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, reported earlier by The New York Times, leans heavily on a dissenting opinion from former Justice Antonin Scalia in a 1995 Supreme Court case. It comes on the heels of a new rule from the wildlife service in July that narrowed the definition of “harm” under the Endangered Species Act, or ESA.
Nesvik's directive will guide how that new rule is put into action, according to a Thursday statement from the Interior Department, which includes the Fish and Wildlife Service.
“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.
Some companies may still seek permits
For decades, the government had defined harm to imperiled animals broadly to include encroachments on places where they live. Environmentalists warn the recent moves, if allowed to stand, will speed extinctions by letting protected species be killed and opening the door to habitat destruction.
“This is basically a free-for-all,” said Noah Greenwald with the Center for Biological Diversity, an environmental group. “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 minimize harm to species by crafting habitat protection plans and issuing permits for some incidental killings.
Under the new interpretation of the law, the only people needing such a permit 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.
But Snodgrass said some companies may still seek permits to guard against changes by future administrations or to protect themselves against citizen lawsuits.
The Endangered Species Act is credited with bringing back iconic animals — including the bald eagle, American alligator and California condor — from the brink of extinction.
Republicans rolled back several provisions of the law in Trump’s first term, only to have those moves reversed under Democratic President Joe Biden, then revived yet again during Trump's second term.
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