The Trump Administration Defangs the Endangered Species Act

From The New York Times, I'm Rachel Abrams, and this is The Daily. In its second term, the Trump administration has escalated its efforts to roll back environmental regulations. The Trump administration is moving to open up a large chunk of Alaskan wilderness to oil and gas drilling. With a stroke of a pen, President Donald Trump has cut Bears Ears and Grand Staircase-Escalante National Monuments down to a tenth of their size. The Trump administration is moving forward with plans to repeal a rule protecting millions of acres of roadless forest. Many of these actions were expected by conservationists, but last week stood apart as it became clear that one of America's bedrock environmental laws, the Endangered Species Act, appeared to be losing some of its most important protections. So today, I speak with my colleague Katrin Einhorn about what is changing and what impact it could have on the country's most vulnerable animals and ecosystems. It's Monday, September 21st. Katrin Einhorn, welcome to The Daily. Thank you so much. Katrin, I think that at this point, everybody has this sort of general sense that the Trump administration has been rolling back a lot of different environmental protections as part of this sort of broader push to deregulate. You have been covering, though, this huge escalation against what I think is probably one of the most iconic protections in the country, which is the Endangered Species Act. Just remind us briefly what that is. Yeah, I mean, it's a really landmark law. It's half a century old now, and it protects, in the U.S., more than 1,600 animals and plants that are threatened with extinction. You know, it lists them as either threatened or endangered. And, you know, the law does a lot of things. One longstanding rule is that you have to take steps to avoid accidentally destroying a species living in a place. No matter who you are. If you're a person building a house or a company logging a forest. And the Trump administration has been taking measures to weaken the law in all kinds of ways. It's part of his deregulatory agenda, which he's really proud of and talks about a lot. They did some of that work in his first term. And now, during the second term, the administration has been more aggressively trying to strip protections in the act. In this past week, we got access to a memo outlining intentions to go. Even further, it shows that they're trying to strip a really core aspect of this law where they're arguably telling people, you won't get in trouble for killing endangered species so long as you didn't mean to target them. Which is an enormous change in the protections that endangered species have had in this country. Before we get into the specifics of how that is happening, I want to hear a little bit of the history of the Endangered Species Act. Like, what does it actually say and what were its goals initially? I think it helps to go even a little bit further back to, like, the late 1800s and the early 1900s. A lot of very prominent species had been hunted to near extinction. Bison is really the iconic example. Passenger pigeons had actually been hunted to extinction. They are extinct. They used to be so abundant that they would, like, darken the skies. Wow. Wolves, beavers, even white-tailed deer. Their populations had collapsed because of overhunting. And so, at first, conservation in the U.S. was really just about recovering species. Managing hunting and fishing for more sustainable populations. And then over time, scientists and other conservationists really came to understand the importance of habitat and ecosystems on which species depend. And this ultimately leads to a more holistic conversation about what kind of protections animals needed. Okay, so this conversation starts, what happens next? Well, we're in, like, the early 1970s, right? And the environmental movement is changing. And the environmental movement has gained huge traction. I don't think there's any other issue viewed in its broadest sense, which is as critical to mankind, as the issue of the quality of the environment in which we live. Let's remember what was happening. Like, the pesticide DDT was devastating bird populations. Now the oil gushes forth out of control. There is no way to stop it. In 1969, there's this record-breaking oil spill. Off the coast of California. The Cuyahoga River in Ohio is so loaded with the waste products of petroleum distillation that it is actually in danger of catching fire. The Cuyahoga River in Cleveland catches on fire. We must act. And act decisively. It is literally now or never. In 1970, the EPA is established. It goes on to ban DDT. The Clean Air Act, the Clean Water Act pass right shortly after. These problems will not stand still. For politics or for partisanship. The time has come for man to make his peace with nature. And during this time, President Nixon, of course, a Republican, says that measures in place to conserve species are not adequate. And he calls on Congress to pass a more comprehensive law. And they do it almost unanimously. And it's called the Endangered Species Act. And how did it actually work? Like, what did it say specifically about how to protect animals or endangered species? There are a lot of provisions in the law. But, like, one really important thing that I think we can wrap our head around and that is important for this conversation is that it says that you can't take an endangered animal. And it notes that the term take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Okay, so lots of words that basically mean. Do not hurt an animal that is endangered or at risk of being endangered. Yeah, and a lot of those words are really sort of clear and sharp. But, you know, one in particular has been a lot mushier, and that is the word harm. What does it actually mean to harm something? People could interpret that in different ways. And it leads to this central question and fight over what constitutes harm and, therefore, what people and industries can be held responsible for. Mm-hmm. Mm-hmm. Mm-hmm. Mm-hmm. Mm-hmm. Mm-hmm. Mm-hmm. Mm-hmm. Mm-hmm. But the state of Hawaii said that, no, it was not harming the bird because it was not directly killing the bird. So this was really hinging on, like, what does harm actually mean? How far does it go? The judge sided with the bird. The judge rules that damage to the habitat does constitute harm, and the bird wins the case. Okay, so this is a big deal. Yeah. Because now you have a judge saying very simply that if you can establish that something causes harm to this essential habitat, then you're harming the animal, and the animal gets the protections of the Endangered Species Act. And this is a really big deal because it speaks to how endangered species are driven to extinction in the U.S. now. They're rarely hunted outright anymore. Now it's more that as people transform land and water, you know, so, like, logging for timber, draining for agriculture, or housing developments, damming, drilling, these species run out of places to eat, breed, and shelter. Mm-hmm. And this ruling in Hawaii sparks a really big backlash from industry and private landowners who are really, like, shocked by the new controls over, like, what they could do on their land. And what also happens as part of this is that Congress actually adds language to the Endangered Species Act, adds this thing called incentives. It's a way for a project to be approved even if some endangered species would be harmed. How does that work exactly? So developers have to describe the impact of their action on endangered species. They have to list ways which they're going to mitigate it. They may have to contribute to a conservation plan that would help the species in some other location, essentially like an offset, right? And this. This mechanism has actually protected a significant amount of land in the U.S., and it's a balance. It's creating a way for economic activity to continue while also providing some species conservation. And basically, just so I understand this, the way this works is if you want to, let's say, build an apartment complex on top of where a bunch of endangered salamanders live, for example, and you're going to crush a bunch of these salamanders, you basically, if you are the developer, you need to come up with a plan to maybe save a bunch of salamanders somewhere else. That's the whole, like, offset permit that you're trying to get. That could be. That could be. That's part of it. part of what you would have to do. Okay. And as you said, this is actually quite successful in terms of conservation. Yeah. But there's another legal case that's really important to understand in the context of this very slippery word, harm. Okay. And tell us about that case. So in 1990, the northern spotted owl was listed under the Endangered Species Act. Another bird. Is another bird plaintiff? It's another bird. The bird was not the plaintiff in this case. Okay. And this owl needs mature or old growth forests in order to survive. And so some of these older forests that had been slated for logging all of a sudden were held up. And timber interests were really upset about that. They felt like the government had overreached here and that this definition of harm was out of line with what the Endangered Species Act actually allowed. And so they sued, challenging, the government's interpretation of this word harm. And it goes all the way to the Supreme Court, but the Supreme Court upholds the interpretation of harm. Six to three. In that decision, Justice Scalia writes a dissent. And this dissent is going to come to matter a lot. And what does he say in his dissent? He's pushing back against the majority ruling that said this kind of significant habitat modification that does count as harm under the Endangered Species Act. Justice Scalia starts off by saying that interpretation, quote, imposes unfairness to the point of financial ruin, not just upon the rich, but upon the simplest farmer who finds his land conscripted to national zoological use. And he gives this example. He's like, you know, if we're going to interpret it like that, then it would require us to accept, he says, that a farmer who tills his field and causes erosion that makes silt run into a nearby river, which depletes oxygen and thereby impairs the breeding of protected fish, has taken or attempted to take the fish. He's saying this is like way too much. He calls it a ruthless dilation of the word. And then he goes on to make an argument about intent. He says that to legally harm an endangered species, you have to intend to target it. And he really emphasizes that like this has to be like affirmative conduct intentionally directed against a particular animal or animals. OK, so he's arguing basically for something much, much narrower. Much narrower. And this dissent becomes very important in the moment we now find ourselves in because the notion that Scalia lays out in this dissent has become the blueprint for what's happening today. How so? So last year, the Trump administration proposed a rule change, essentially saying they plan to delete language, regulatory language, that defined harm as extending to certain habitat. They finalized the rule this summer, and it came into effect just very recently. And conservationists were really worried about what this would mean for endangered species. At the same time, at these agencies, there are questions about, OK, well, how do we apply the law now? And so what happened last week is that the director of the Fish and Wildlife Service sent out a memo. And I got my hands on it. OK. And it went beyond what environmental lawyers, former agency biologists, so many of these longtime people. It went beyond anything they had been expecting. We'll be right back. So, Katrin, tell us more about what this memo that you got shows us about what the Trump administration plans to do with the Endangered Species Act. OK. So. It takes Justice Scalia's dissent, and it applies it really broadly. So for the death of an animal or the injury of an animal to be illegal under the Endangered Species Act, it has to be intentional. And so, like, for example, I think this actual quote from the memo will help people wrap their heads around it. It says, A vessel that inadvertently strikes a whale has not taken it because the vessel's course was not set against the whale. Felling a tree is not a take of the bats roosting in it. Unless. The tree is felled for the purpose of killing or capturing them. So this is a huge shift, right, Katrin? Because before, this law did not say anything about intentionally targeting an animal. But under this new interpretation, somebody would only get in trouble if they saw a whale and were like, I'm going to kill that whale. And then somebody maybe overheard them so that there was some evidence or corroboration that they intended to kill the whale. That's what it appears. And I mean, when I got my hands on this memo and I was reading it to various environmental lawyers, you know, people who have been in government, people who have worked on Endangered Species Act litigation, you know, for decades, people were really quite floored that the administration is taking it this far. The reason being is that most endangered animals in this country are killed incidentally. They are not targeted. It's not like, you know, elephants getting poached for their tusks. Right. We were talking about all these indirect ways that animals get endangered. Exactly. It's draining a wetland. You know, it's building a dam. It's, you know, piloting a ship. And so the concern is that this potentially de-incentivizes companies, private individuals, from having to take any kind of like measures to avoid this kind of collateral damage to species. So it's not totally clear what this memo will mean or how all this will play out. But these actions feel really unprecedented. You're basically saying that even though it's not totally clear how everything is going to shake out, there's still some questions. Things are not looking good for endangered animals in this country. It would be hard to dispute that sentence. You are correct. Some of the species in question are so critically endangered, there are like maybe 50 left. Right. So they really are on the edge of extinction. And it certainly seems plausible that some of these measures could just tip them over. And, you know, I think it's important to also just sort of acknowledge like the knock-on effects or the ripple effects. So when people create these habitat conservation plans, when land is conserved, ecosystems are really complex things. And it ends up creating habitat for all kinds of other species potentially, right? Not just the salamanders that may need a certain wetland, but that wetland would then nurture all kinds of other species, which may not be on the endangered species list yet, but might be on the way there. I mean, all kinds of biodiversity are suffering losses in the U.S. and around the world, right? So there are sort of the direct impacts. And then there are also sort of these really hard to quantify indirect impacts, I would say. You know, at the risk of sounding like a huge jerk here, there feels like just a little bit of like a zero-sum gameness to this issue in the sense that the places where animals live are often places where humans need stuff, right? Just to say it in like a very simple way. And it feels inevitable that our needs in some instances will win out over the needs of animals. The ESA was obviously an attempt to balance that as much as possible. But is there a possibility that the ESA might have been so strict that it was vulnerable to this kind of criticism, that it was overly broad, overly restrictive? Yes. So many people make that argument. The government certainly does, right? They say that like the Endangered Species Act has been burdening American families and businesses and that they're restoring common sense, that they're respecting private property and that they're returning to the original. And so I think that's kind of the intent of the ESA. Now, even like lots of conservationists would say there is way too much red tape when it comes to all the kinds of hoops that you have to jump through, that there has to be permitting reform. Certainly things should be streamlined. I think there's broad support for that. But what's happening here is not that. These are like really dramatic shifts in how this law would be enforced. In this argument about whether the scales have changed, I think there's a lot of argument. I think there's a lot of argument. Is anybody actually measuring either side, like how often businesses get inhibited or how often endangered species are wiped off the face of the planet because of business? I think Americans would actually be surprised by how few projects are completely denied because of endangered species protections. They usually find a way to go ahead. Basically, like if you want to build something, you can probably figure out some way to build it. You might have to make a plan, but typically you can go ahead and do it. Go ahead. Exactly. And, you know, conservationists criticize that. I mean, you know, they say that these enforcements don't go far enough and that often we're just managing extinction. And that part of the reason that species aren't recovering more and aren't actually like getting removed from the list because they've recovered is because of this, because we're not doing enough to protect them. And now this little protection, this managed extinction is kind of gone, basically. It's certainly a lot weaker than it was before last week. Given how many people are upset about all of these changes, what sort of legal challenges have we seen or expect to see? So wildlife advocates and actually a bunch of states have already sued over part of this. Some of this litigation, you know, could end up going to the Supreme Court. And I have heard some concerns, you know, given the conservative supermajority on the Supreme Court, the risk would be that these changes could be enshrined, which would prevent future administrations from. Reversing them. Nevertheless, you know, the folks suing really feel like they have the law on their side. I think what we do know is that these fights are going to drag on. on probably for a long time, even as these protections are rolled back on the ground. Katrin, you are a biodiversity and climate correspondent, which means you literally spend all of your time reporting mostly on loss of species and plants and habitats. And so I just wonder, given where we are in terms of biodiversity collapse, in terms of climate change, everything that goes with all of that, what are the implications for this huge rollback of protections for the most vulnerable species in the United States? You know, zooming out biodiversity loss is a really huge and underappreciated problem. And it's interesting, on my beat, like I had one person say to me at one point, like, who cares if cheetahs go extinct? You know, some people think that. Some people like, oh, extinction's always happened. It's not a big deal. And it is true that there's like a natural background of extinction that would always be happening. But of course, humans have raised that so much. And apart from even the extinctions, there's just like all these species whose numbers are being depleted. So, you know, if you think of the endangered species list, like the ICU, then there's all these species that are just sick and they haven't quite gotten into the ICU yet, but they're headed that way. And ultimately, people pursue conservation for a lot of reasons. Healthy ecosystems, are essential for a healthy economy at the end of the day. Like our economy relies on ecosystems that are filtering our water, giving us clean air, pollinating our food, like all that. And actually like a lot of business organizations have come out and said this and cited biodiversity loss as a huge risk for the economy. And so ultimately, this binary between economic growth and species conservation really breaks down in the real world in terms of what all this is ultimately going to mean for humanity in the long run. Katra Neinhorn, thank you so much. Thank you, Rachel. We'll be right back. Here's what else you need to know today. I arrived here as I do many days of the week. Many weekends. And then once I was inside where we have magnetometers, I attempted to scan my badge. It did not work. There was a red beeping light. On Saturday, journalists from CNN, MSNOW, and Politico were denied access to the White House grounds and had their badges taken. I asked why I was not able to get inside. He said it was above him. President Trump's decision to bar those three news outlets, announced in a Truth Social post on Friday, was so abrupt that it caught some administration officials off guard. The White House said it was not able to get inside. The move represents a stark escalation in the president's ongoing fight with the news media. And it sets up a significant legal clash. And the White House has begun drafting a new executive order that could further cement President Trump's ability to control billions of dollars in scientific grants that are funded by the National Institutes of Health. The directive would create a new committee that could veto biomedical research grants that do not conform to President Trump's political agenda, according to people in the White House. with knowledge of the effort. Today's episode was produced by Olivia Natt, Caitlin O'Keefe, Jack DiZidoro, and Asta Chaturvedi. It was edited by Lizzo Balin and Rob Zipko, with help from Paige Cowett. And it contains music by Dan Powell and Pat McCusker. It was engineered by Chris Wood. Our theme music is by Wonderly. That's it for The Daily. I'm Rachel Abrams. See you tomorrow.