The Trump administration has quietly directed US Fish and Wildlife Service (FWS) staff to radically reinterpret the Endangered Species Act (ESA), effectively allowing preventable deaths of endangered animals if the actor did not specifically intend to kill them. According to an internal memo dated September 14, FWS Director Brian Nesvik instructed field offices that the ESA will now only prohibit actions "specifically intending to target an animal." The memo argues a vessel striking a whale or felling a tree with roosting bats does not constitute a "take" unless the action was purposefully aimed at the animal.

This follows an earlier rule change removing habitat destruction from the ESA's definition of harm. Environmental advocates, including Earthjustice senior attorney Ben Levitan, call the move "incredibly sneaky and disingenuous," noting incidental takings are the most common cause of death for endangered species. Previously, businesses had to conduct environmental reviews and obtain permits for accidental killings.

The administration cites the Supreme Court's decision to overturn the Chevron doctrine as justification, claiming the 1995 ruling upholding habitat protection relied on that deference. The new enforcement blueprint draws directly from Justice Antonin Scalia's 1995 dissent, which mocked protections for threatened species and argued the ESA does not authorize preventing habitat modification.