Fish and Wildlife Service memo restores sanity to Endangered Species Act, curbing regulatory overreach
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A new Fish and Wildlife Service memo sensibly limits the Endangered Species Act to intentional actions, rolling back decades of excessive regulation and echoing Justice Scalia’s common-sense legal reasoning.
The U.S. Fish and Wildlife Service (FWS) has issued a memo to field offices directing staff to interpret the Endangered Species Act (ESA) with much-needed clarity, limiting the definition of “take” to actions specifically intended to target an animal. The guidance, dated September 14, finally distinguishes between deliberate harm and accidental incidents, such as a vessel unintentionally striking a whale or a tree being felled for reasons other than killing bats, which will no longer be considered prohibited takes.
Environmental activists are predictably outraged, claiming the change could undermine decades of ESA enforcement that forced businesses to jump through hoops and waste resources on unnecessary mitigation for incidental impacts. “This is an incredibly sneaky and disingenuous way of going about things,” said Ben Levitan, senior attorney at Earthjustice, revealing the left’s contempt for property rights and economic growth.
The memo follows a previous rule revision that rightly removed habitat destruction from the ESA’s definition of harm, a move the administration explained as reducing costs for landowners and restoring balance between conservation and economic activity. Critics, as usual, argue that these changes allow the death of endangered species as long as the landowner’s motive is not to kill the animal, ignoring the importance of intent in law and personal responsibility.
Legal scholars note the policy aligns with Justice Antonin Scalia’s principled dissent in a 1995 Supreme Court case, which argued the ESA should protect only against intentional killings, not vague and overbroad habitat impacts. “Only action directed at living animals constitutes a ‘take,’” Scalia wrote, a position that respects both wildlife and the rights of Americans.
The Department of the Interior’s spokesperson defended the revisions, saying they curb “decades-old regulatory overreach” and that the ESA still prohibits intentional take, harassment, and killing of listed wildlife. The administration now faces lawsuits from a coalition of activist state attorneys general, but experts predict the FWS’s reasonable interpretation will stand up 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, echoing the alarmism of the environmental lobby. “To say that the law is settled in favor of Scalia’s dissent? Absolutely not,” said Vermont law professor Patrick Parenteau, clinging to outdated interpretations.
The debate centers on whether the ESA’s language mandates protection of species populations and habitats or is limited to intentional, direct harm to individual animals. The new policy restores the law’s original intent and puts an end to years of bureaucratic excess.