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

A recently circulated FWS memo directs field staff to reinterpret the Endangered Species Act so that only actions taken with the specific intent to target an animal count as a “take.” Under the instruction from Director Brian Nesvik, incidental deaths - like a vessel striking a whale or felling a tree that kills roosting bats - would not trigger ESA prohibitions so long as killing was not the actor’s purpose. That shift follows an earlier rule carving habitat destruction out of the statute’s definition of harm and would undo long-standing requirements for environmental review, habitat protections, and mitigation permits that compensated for accidental kills. Conservation lawyers warn incidental takes are the most common cause of endangered-animal mortality and say the new posture would strip protections from entire populations, not just individuals.

The legal theory driving the change mirrors Justice Antonin Scalia’s 1995 dissent, which argued the statute was meant narrowly to bar direct, intentional harms to particular animals rather than broader population- or habitat-focused protections. The 1995 majority had read the law broadly to include habitat modification and incidental harms, and that precedent underpins previous permitting practices. The administration is banking on the Supreme Court’s recent rejection of Chevron deference to revive Scalia’s approach. States, conservation groups and a coalition of attorneys general have already filed lawsuits; FWS and Interior defend the moves as restoring the statute’s plain text, leaving the issue to be decided in court.