The fate of the Endangered Species Act rests on 2 simple words

The U.S. Fish and Wildlife Service says it will no longer treat accidental killing of a protected species as illegal ‘taking,’ and has separately ruled that destroying an animal’s habitat no longer counts as ‘harming’ it. Together the two memos gut the enforcement mechanism that has underpinned the Endangered Species Act since 1973, letting logging, mining, and construction proceed with less regard for what lives on the land.

The agency's director, Brian Nesvik, illustrated the new standard with examples: a ship that strikes a whale hasn't taken it if the ship wasn't aimed at the whale, and felling a tree with bats in it isn't a take unless the tree was cut specifically to kill the bats. Legal experts note this adopts a dissenting, minority position from a 1995 Supreme Court case, not the position that actually won.

Nearly two dozen states have already sued over related changes, and conservation groups including Defenders of Wildlife and the Center for Biological Diversity expect more litigation. One attorney called the move 'performative cruelty' that turns a conservation law into something closer to an anti-poaching statute, while noting it may be too legally flimsy to survive court review.

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