Trump administration overhauls key protection for endangered species

The Trump administration has significantly altered the Endangered Species Act (ESA), a pivotal piece of legislation enacted in 1973. In a decision that conservationists view as undermining the law's core purpose, the administration will no longer consider the unintentional killing of protected wildlife as unlawful under the ESA. This shift is outlined in a directive signed by Brian Nesvik, the director of the Fish and Wildlife Service, which oversees the ESA.

Under the new rules, deaths resulting from foreseeable risks posed by activities such as commercial fishing or logging will be exempt from ESA protections. This means that a vessel inadvertently striking a whale or a tree falling and harming bats roosting within would not be considered a violation of the ESA.

Conservationist Gib Brogan of Oceana Fisheries expressed concern, stating that such a move effectively guts the ESA. He added that the law has successfully balanced human economic needs against conservation for over five decades. The directive redefines the term "take," which refers to pursuing, killing, or capturing a species, to only apply to "affirmative conduct intentionally directed against a particular animal or animals."

The change in definition is explicitly based on a dissent by late Supreme Court Justice Antonin Scalia in the 1995 case Babbitt v. Sweet Home. The document quotes Scalia, stating that an incident like striking a whale is not considered a take, as the vessel's course was not set against the whale.

The administration's decision follows the rescission of the regulatory definition of "harm" and another rule that automatically applied ESA protections to species listed as threatened. This latest attack is seen as the most significant by Brogan, particularly for species like North Atlantic right whales, with only around 380 left, threatened primarily by entanglement in fishing gear and ship collisions.