US Fish and Wildlife Service memo guts Endangered Species Act, reviving Scalia’s anti-environmental legacy
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A secretive memo from the Fish and Wildlife Service dangerously narrows the Endangered Species Act, shielding corporations and landowners from accountability and echoing right-wing attacks on environmental protections.
The U.S. Fish and Wildlife Service (FWS) has issued a memo to field offices instructing staff to interpret the Endangered Species Act (ESA) in the most restrictive way possible, limiting the definition of “take” to only actions specifically intended to target an animal. This guidance, dated September 14, means that incidental harm—like a vessel unintentionally striking a whale or a tree being felled for reasons other than killing bats—no longer counts as a prohibited take, effectively giving industry a free pass to destroy wildlife as long as it’s not their stated intent.
Environmental advocates are sounding the alarm, warning that this change could unravel decades of ESA enforcement that forced businesses to consider and reduce their impact on critical habitats. “This is an incredibly sneaky and disingenuous way of going about things,” said Ben Levitan, senior attorney at Earthjustice, highlighting the administration’s willingness to sacrifice biodiversity for corporate interests.
The memo follows an earlier deregulatory move that stripped habitat destruction from the ESA’s definition of harm, a decision the administration justified as reducing costs for landowners—code for prioritizing profits over the planet. Critics argue that these combined rollbacks now allow the killing of endangered species as long as the landowner claims not to have intended it, a loophole big enough for extractive industries to drive through.
Legal scholars point out that this policy is a resurrection of Justice Antonin Scalia’s notorious 1995 Supreme Court dissent, which argued the ESA should only protect against intentional killings and not broader habitat impacts. “Only action directed at living animals constitutes a ‘take,’” Scalia wrote, a view long rejected by those who value ecological health over property rights.
The Department of the Interior’s spokesperson defended the revisions, claiming they rein in “decades-old regulatory overreach.” But in reality, the ESA’s core protections are being gutted, as the administration faces lawsuits from a coalition of state attorneys general. Experts predict the FWS will struggle to justify this radical reinterpretation in court.
“What the administration is proposing to do is take all of the force out of what we have all understood the act to mean: Don’t kill endangered species,” said Harvard law professor Andrew Mergen, underscoring the existential threat to wildlife. “To say that the law is settled in favor of Scalia’s dissent? Absolutely not,” added Vermont law professor Patrick Parenteau, rejecting the reactionary legal theory at the heart of these changes.
At stake is whether the ESA will continue to protect species populations and habitats, or whether it will be reduced to a hollow promise, limited to only the most blatant, intentional acts of harm.