Rahul Somvanshi
The Trump administration has reinterpreted the Endangered Species Act to narrow legal protections for wildlife, restricting prohibitions on harming protected species to intentional killings only. Under the final rule published July 14, 2026 in the Federal Register (91 FR 43300) and effective September 14, 2026, accidental harm during logging, dam construction, or other development activities is now permissible even when developers have prior knowledge that the work will kill or injure wildlife.
The rule, published in the Federal Register (91 FR 43300), rescinds the longstanding definition of “harm” from the Endangered Species Act regulations at 50 CFR 17.3 and 222.102. The change redefines “take” to require intent, eliminating decades of protections that treated incidental harm the same as deliberate killing.
The New Standard
Under the revised definition, specific examples provide clarity on what remains illegal. In a memo sent September 14 to FWS staff and later made public by the Center for Biological Diversity, first reported by the New York Times, FWS Director Brian Nesvik explained the standard with concrete scenarios: “Felling a tree is not a take of the bats roosting in it unless felled for purpose of killing or capturing them.” Similarly, “A vessel that inadvertently strikes a whale has not taken it because the vessel’s course was not set against the whale.”
The rule maintains prohibitions on hunting, trapping, capturing, collecting, harassing, wounding, and shooting protected species. However, developers no longer face legal liability for deaths or injuries that result from their activities if the harm was not the intended outcome.
Scope of Impact
The reinterpretation affects approximately 1,600 protected species under federal law. The change eliminates the need for incidental-take permits that previously required developers to minimize harm to wildlife during permitted activities. Previously, the Fish and Wildlife Service would issue such permits only when developers demonstrated they had minimized impacts to listed species.
Under the old framework, businesses had to conduct environmental reviews identifying critical habitat, then either preserve it or offset accidental killing through conservation funds. That permitting structure, established after the Supreme Court first addressed the question in 1995, is now effectively void for private-land actions — including logging operations in grizzly habitat that previously required ESA compliance reviews.
Opposition and Lawsuits
Conservation organizations have sharply criticized the rule. Dan Ashe, who directed the Fish and Wildlife Service under the Obama administration, characterized the change as creating a “huge loophole” that “relieves people of responsibility.” Brett Hartl, endangered-species policy lead at the Center for Biological Diversity, called the reinterpretation “cruel and profoundly unlawful” in a statement issued September 17. Ben Levitan, an attorney for Earthjustice, described the approach as “incredibly sneaky and disingenuous,” saying advocates felt falsely reassured when the harm definition was first narrowed earlier in 2026.
States and conservation groups have already filed lawsuits challenging the rule, with cases working through federal courts. The Associated Press reported the directive on September 17.
Legal Foundations
The administration’s reinterpretation relies on a 1995 Supreme Court dissent by Justice Antonin Scalia that argued the original Endangered Species Act did not intend “harm” to be included in the definition of “take.” That dissent had been relegated to minority opinion for three decades under regulatory interpretations by Democratic and Republican administrations alike. The Trump administration has argued that the 2024 Supreme Court decision overturning the Chevron doctrine — which historically gave deference to agency interpretations of ambiguous laws — opened the door to reconsidering the prior regulatory approach based on the Scalia reasoning, as the Federal Register final rule (91 FR 43300) and ABC News reported.
The reinterpretation marks a sharp departure from how the Endangered Species Act has been enforced since its passage in 1973. Federal agencies had long held that protecting species required minimizing incidental harm during development, a principle embedded in the permitting process.
What Stays Illegal
The Interior Department confirmed that the ESA’s prohibition on “take” continues to prohibit conduct including harassing, pursuing, hunting, shooting, wounding, killing, trapping, capturing or collecting protected wildlife. The narrowed reading applies to indirect or incidental deaths resulting from otherwise lawful activity, not to deliberate acts against listed animals.
Source
Full background: creaturesincrisis.org — Is it still illegal to accidentally kill an endangered species? The 2026 ESA take directive. Reporting: Associated Press / ABC News, New York Times.
