Trump’s FWS memo lets ESA-protected species be killed if death isn’t the intent
A September 14 Fish and Wildlife Service memo narrows the Endangered Species Act to only ban intentional killing, alarming conservationists.
What to know
- An FWS memo dated September 14 narrows the Endangered Species Act to bar only intentional killing of protected animals, exempting incidental deaths from habitat modification.
- The change builds on an earlier 2026 rule that removed habitat destruction from the ESA's harm definition, which advocates say the administration is now using to justify ignoring the most common cause of endangered species deaths.
- Reporting ties the administration's legal reasoning to Antonin Scalia's 1995 dissent, which argued the ESA shouldn't restrict habitat modification, now framed as invalidating the majority ruling via the end of Chevron deference.
- Environmental attorneys, including Earthjustice's Ben Levitan, call the move disingenuous and warn it could threaten entire animal populations, not just individuals.
Donald Trump US President
Brian Nesvik Director, US Fish and Wildlife ServiceBen Levitan Senior attorney, EarthjusticeAntonin Scalia Former Supreme Court Justice (deceased)
How it unfolded 2 developments, newest first · click a bar or a number to jump articlesposts
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Social media reaction voices alarm over the policy shift
Readers sharing the Ars Technica report reacted with dismay at the administration's reinterpretation of the ESA.
“Damn them all…”
— @mlleared.bsky.social -
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Ars Technica ties Trump's ESA rewrite to Scalia's 1995 dissent
Ars Technica reported that the Times found the dissent in a 1995 Supreme Court ESA case, written by Antonin Scalia, is serving as the "blueprint" for the new FWS enforcement approach, with the administration arguing the majority opinion was invalidated by the later end of Chevron deference.
“This is an incredibly sneaky and disingenuous way of going about things.”
— Ben Levitan, Earthjustice senior attorney -
background
New York Times reveals the internal memo to conservationists' surprise — The Times reported the memo had been quietly distributed across FWS field offices, a move that blindsided conservation groups who thought earlier harm-definition changes wouldn't be used to excuse preventable deaths.
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background
FWS Director Nesvik issues memo narrowing ESA enforcement — Brian Nesvik instructed FWS staff that the ESA will now only prohibit actions "specifically intending to target an animal," exempting incidental harms like ship strikes on whales or tree-felling that kills roosting bats.
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background
Administration removes habitat destruction from ESA harm definition — Earlier in 2026, a rule change removed the destruction of habitat from the Endangered Species Act's definition of harm, which the administration said was meant to spare landowners costs when animals weren't directly endangered.