Full Breakdown
Trump Administration Redefines “Take” Under the Endangered Species Act
By Drooid · · How we work
Core Event: September 14 Memo Narrows ESA “Take” Definition
On September 14, Fish and Wildlife Service (FWS) director Brian Nesvik issued an internal memorandum to all FWS field offices. Under this reading, accidental harms—such as a vessel striking a whale or a tree being felled that incidentally kills roosting bats—are no longer unlawful under the 1973 Endangered Species Act (ESA).
Background & Context
The ESA has prohibited “take” of listed species since its enactment, with “harm” historically defined to include habitat degradation and incidental killings. In July, the Trump administration rescinded the regulatory definition of “harm,” arguing that the agency had overreached. The September 14 memo cites former Justice Antonin Scalia’s dissent in *Babbitt v. Sweet Home* to justify the narrower reading.
Data & Statistics
- More than 1,600 critically imperiled species are listed under the ESA.
- 20 Democratic-led states and the District of Columbia have filed lawsuits challenging the reinterpretation.
- The North Atlantic right whale population stands at fewer than 400 individuals, with about 70 breeding females.
Impact: Why It Matters
If the new “take” definition is applied, industries such as commercial fishing, logging, mining, and offshore wind could proceed with activities that foreseeably kill or injure protected wildlife without legal liability. Conservation scientists warn that the North Atlantic right whale could lose the remaining legal safeguards that deter ship strikes and entanglement. The shift also threatens habitat-dependent species like roseate terns and piping plovers, whose protections rely on the “harm” definition.
Official Statements & Responses
Agency officials emphasized that the ESA still prohibits intentional acts that harass, pursue, hunt, shoot, wound, kill, trap, capture, or collect listed wildlife. Interior Secretary Doug Burgum framed the changes as a return to the law’s “original intent,” arguing that previous interpretations “weaponized” the ESA to block lawful land use and burden American families and businesses.
Criticism & Opposition
Environmental groups have denounced the memo as a “huge loophole” that undermines decades of conservation progress. Marine ecologist Mark Baumgartner warned that “it doesn’t take much to push a species like this right over the brink.”
On-the-Ground Reports
Field observations show that right whales are frequently struck by vessels and entangled in fishing gear—both unintentional harms that have driven recent mortality spikes.
Conflicting Reports & Gaps
- The memo does not clarify whether “incidental take permits” will continue to be required for activities that may cause foreseeable harm.
- While the Interior Department asserts core ESA protections remain, environmental groups contend that removing the “harm” definition effectively nullifies habitat safeguards.
- No agency timeline has been provided for when the new guidance will be enforced, leaving uncertainty for both industry and conservation stakeholders.
Verbatim Quotes
- “It doesn't take much to push a species like this right over the brink,” — Mark Baumgartner
- “For too long, the Endangered Species Act has been weaponized to stop almost any new project in America, driving up costs for families, weakening our competitiveness and undermining our national security,” — Interior Secretary Doug Burgum
What’s Next
Litigation by the coalition of 20 states and the District of Columbia is proceeding in federal court, while bipartisan members of Congress have introduced resolutions to overturn the rule through a simple majority vote. Additional regulatory proposals aimed at further limiting ESA protections are expected later this year, prompting continued monitoring by wildlife agencies and advocacy groups.