Trump Administration Moves to 'Neuter' America's Most Important Wildlife Law
Congressional Republicans also plan to turn the Endangered Species Act into a dead letter.
For more than 50 years, the Endangered Species Act has helped scores of species — from whooping cranes to red wolves to California condors — claw their way back from the edge of extinction. Its success has made it supremely popular with the American public — far more popular, for instance, than Congress. But now, like all those species it helps protect, the law itself is in grave peril. The Trump administration, Congress, and their allies have launched a barrage of legislation, litigation and regulatory maneuvers in recent months that together could tear the teeth out of our most powerful wildlife conservation statute.
If these efforts succeed, they will “take away most of our regulatory power for most species,” said a source inside the U.S. Fish and Wildlife Service, which is one of the key agencies that administers the Endangered Species Act, or ESA.
The most pressing of these proposals emanates from the Department of the Interior, where Trump appointees are seeking to effectively eliminate one of the most expansive safeguards for threatened and endangered species. The administration is gunning for Section 9 of the ESA, a load-bearing legal provision which makes it illegal for any person or entity to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” an endangered species. The Trump administration’s new proposal focuses on only one of the words listed above — “harm.” What does it mean to harm an endangered species?
Given that habitat degradation and loss is the largest single driver of species extinction, the government has long applied the ESA’s prohibition against harm to imperiled animals as well as their habitat. Federal regulations specifically include in their interpretation of harm those actions that cause “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” This has empowered the Fish and Wildlife Service and other agencies to combat habitat destruction. If you cut down a forest that endangered bats rely on to roost, then you may be harming that species and breaking the law. If you build a dam that drowns endangered salmon habitat, ditto. If you build a subdivision in forests where Florida panthers breed, you may be in violation of the ESA. Punching an endangered animal in the face would run afoul of Section 9. But wiping out endangered species habitat is harm too and more enduring harm at that.
Under its new proposal, however, the Trump administration plans to drastically narrow the government’s interpretation of what it means to harm an endangered species. The Supreme Court has previously upheld the government’s interpretation, but the Trump administration, with its own allies now ascendant in the judiciary, has decided to simply discard it. In its place, the administration's regulatory proposal appears to envision a definition of harm limited to actions like hunting, trapping or capturing that directly hurt individual protected animals. And with that, when it comes to the all-important Section 9 of the ESA, habitat destruction is no longer harm.
The move would have profound and compounding impacts on wildlife protection across the country, according to numerous sources. The change would leave the Fish and Wildlife Service with little leverage to challenge habitat-damaging projects pursued by corporations or private individuals. For a whole range of actions, from filling in wetlands used by endangered fish to cutting down forests inhabited by endangered owls, “there will essentially be no consequences under the Endangered Species Act,” said one source inside the Fish and Wildlife Service, who asked to remain anonymous for fear of retaliation.
This “effectively neuters the ESA,” said another source inside DOI. “If we don’t have to protect habitat, then protections for individual members of a species are almost meaningless.”
As the May 19 deadline to comment on the administration’s proposal nears, conservation groups are rallying to combat it. Meanwhile, some experts believe the proposal will be vulnerable to legal challenge. “In my view, these interpretations are clearly unlawful, but like so many other things this administration is doing, it takes the courts a long time to catch up to what is going on — and this administration is barely winking at abiding by adverse court decisions when they finally come,” said Daniel Rohlf, an ESA expert and professor at the Lewis & Clark Law School.
The Interior Department declined to answer queries from Public Domain about this proposal, including questions about the names of the political appointees involved in authoring it.
As the Trump administration whittles away at the law in the administrative realm, Congress is also in on the act. At a House hearing earlier this year, Rep. Bruce Westerman — an Arkansas Republican who recently made sizeable personal investments in oil and mining companies and has received some $1.5 million in campaign cash from the oil and gas and timber industries during his legislative career — described the ESA as a blunt instrument “weaponized against landowners, the energy sector” and others.
With those sentiments, the House GOP is hoping to build support for Westerman’s ESA Amendments Act of 2025. The bill aims to “optimize conservation” of imperiled species, according to its authors. Others see the proposed legislation as another gut-punch to wildlife protections.
“It is really a broadside against everything important in the ESA,” said Ellen Richmond, senior attorney at Defenders of Wildlife, one of the nation’s largest wildlife conservation organizations. “This has the potential to be truly catastrophic,” she added.
Westerman’s bill limits the government’s ability to block projects that would jeopardize the survival of endangered species. It removes blanket protections for species that are on the verge of becoming endangered. And it makes it harder for citizen groups to sue when the government fails to enforce the law. Those are just a few of the changes the bill would visit on the law.
“The ESA is clearly broken and has failed to achieve its goals of species recovery,” a spokesperson for Congressman Westerman wrote in a statement to Public Domain. “In fact, since Congress enacted the ESA in 1973, approximately 1,700 species have been listed as threatened or endangered, not counting experimental populations. Only 3 percent of listed species have ever been classified as recovered and subsequently delisted.”
On the other hand, some 99% of species listed under the ESA survive into the future once they receive federal protection. Westerman’s office declined to say whether he has a position on the Trump administration’s redefiniton of harm, which would likely make it even harder for endangered species to recover and come out from under the shield of federal protection.
The ESA also faces a series of lawsuits from pressure groups and conservative think tanks, including the Pacific Legal Foundation and the Property and Environment Research Center, both organizations that have in recent years each received many hundreds of thousands of dollars from foundations tied to arch-conservative billionaires, including the heir of Andrew Mellon. Late last year, for instance, the Pacific Legal Foundation — an inveterate litigator against the ESA — filed suit to argue that the ESA should no longer apply to species that reside in only a single state, as so many species do. If the organization’s contention is confirmed by the courts, it would wipe out much of the law’s power to conserve endangered animals. In response to queries about its lawsuit, the Pacific Legal Foundation’s Johanna Talcott said that the Constitution “carefully limits federal power to regulate commerce between the state. Put simply, our overriding goal is to ensure that government stays within the proper limits of its authority.” PERC declined to answer questions other than to say the status of its lawsuit remains unchanged.
Whether such lawsuits succeed is an open question, but the political and legal attacks on the ESA are coming from all directions. It is “a very dire time for efforts to protect imperiled species,” said Rohlf, the law professor.
“The Senate filibuster will likely prevent Congress from actually amending the ESA itself. However, we're likely only a couple of weeks away from the demise of the regulatory definition of ‘harm,’ indicating that this administration has a vastly more limited interpretation of the ESA than we've ever seen,” he said. “Without the broad interpretation of ‘harm,’ most listed species will have virtually no protections on non-federal land, which makes up the majority of habitat for most listed species.” The Trump administration, Rohlf added, is “throwing threatened and endangered species under the bus.”