Trump’s sneaky plan to gut Endangered Species Act draws from 1995 Scalia dissent

In a recent development that has caught conservationists off guard, the US Fish and Wildlife Service (FWS) has quietly instructed staff to reinterpret the Endangered Species Act (ESA). According to an internal memo distributed across FWS field offices, the agency is to start viewing habitat modifications causing preventable animal deaths differently.

Instead of prohibiting actions that "specifically intend" to target an animal, the new interpretation will only prohibit actions "specifically intended" to target an animal. This change, highlighted by FWS Director Brian Nesvik in a September 14 memo, could allow private interests to continue causing harm to vulnerable species. For instance, a vessel that accidentally strikes a whale will not be considered a "take" unless the vessel's course was set against the whale.

Similarly, felling a tree to kill bats roosting in it would not be considered a "take" unless the tree was felled for that specific purpose. This move appears to be a stealthy attempt to weaken the ESA, drawing parallels to a 1995 dissenting opinion by Justice Antonin Scalia.