US endangered species law faces major shift as Trump memo narrows meaning of ‘take’. What changed?

The Trump administration, as per reports, is moving toward a new interpretation of the Endangered Species Act that could mean the accidental killing or injury of endangered animals is no longer treated as an illegal “take”.

The memo, dated September 14 and signed by US Fish and Wildlife Service Director Brian Nesvik, was circulated to field offices. The internal memo obtained by The New York Times argues that only actions intended to kill or capture protected wildlife would constitute a prohibited “take”, potentially changing how the law applies to deaths caused by commercial and other activities.

The proposed interpretation centres on the word “take”, which the Endangered Species Act prohibits for endangered wildlife. The memo gives two examples: a vessel accidentally striking a whale would not be considered a take because the vessel was not deliberately directed at the animal, while cutting down a tree containing bats would not constitute a take unless the tree was felled with the purpose of killing or capturing them.

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What could change for developers and businesses?

Under the existing system, activities that could result in the incidental killing or injury of endangered species can require permits.

For example, a developer building on land occupied by an endangered species can seek an incidental take permit. The permit can allow a specified level of incidental harm while requiring conservation measures to reduce the impact.

Now, the interpretation described in the memo could substantially narrow the circumstances in which such permitting is needed.

Amid uproar, the Interior Department's media office, in a statement cited by the NY Times, said the Endangered Species Act continues to prohibit the “take” of protected wildlife, including actions that harass, pursue, hunt, shoot, wound, kill, trap, capture or collect listed animals. It also said the administration's recent removal of the regulatory definition of “harm” did not eliminate the prohibition on take.

Move follows July change to 'harm' rule

The latest development follows the administration's formal rescission of the regulatory definition of “harm” under the Endangered Species Act. That rule took effect on September 14. The Fish and Wildlife Service and National Marine Fisheries Service said the change removed the regulatory definition from federal regulations while maintaining prohibitions on direct injury and killing of listed wildlife.

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The Interior Department has said the change was intended to reduce regulatory burdens and return enforcement to what it considers the statute's original meaning. The department said existing permits and incidental take statements remained valid.

Legal basis dates back to Supreme Court dissent

The new interpretation reportedly draws on a dissent written by Supreme Court Justice Antonin Scalia in a 1995 case involving the meaning of “take” under the Endangered Species Act.

Supporters of the administration's legal position argue that the 2024 Supreme Court decision in Loper Bright Enterprises v. Raimondo, which overturned the Chevron doctrine of judicial deference to federal agencies, changes how earlier interpretations should be viewed.

Legal scholars cited by The New York Times dispute that reading. Andrew Mergen, a Harvard law professor and former Justice Department lawyer who worked on Endangered Species Act litigation, called the proposed interpretation a major departure from the way the law has traditionally been applied. Patrick Parenteau, an emeritus professor at Vermont Law and Graduate School, said the Supreme Court majority in the 1995 case had rejected Scalia's interpretation based on the statute's text.