A newly revealed federal memo says accidental killing of endangered animals is not illegal if it was not intended, reshaping how the government enforces the Endangered Species Act.
Story Highlights
- An internal memo narrows what counts as an illegal “take” under the Endangered Species Act.
- Examples include ship strikes on whales and trees felled with bats inside if harm was not intended.
- The shift follows rules that already removed “harm” tied to habitat destruction.
- The Supreme Court’s Sweet Home decision is a key legal backdrop for the dispute.
What the memo changes and why it matters
News reports describe a Trump administration memo that says accidental killing or injury of listed species is not an illegal “take” unless the actor intended to target the animal. The memo reportedly gives plain examples. A ship that inadvertently strikes a whale would not be liable. Cutting a tree with bats inside would not be a “take” if the goal was not to harm bats. This would move liability away from foreseeable but unintended harm and toward only direct, purposeful acts.
The Endangered Species Act makes it unlawful to “take” endangered wildlife, listing actions like harass, pursue, wound, or kill. For decades, agencies treated some indirect harms as takes when they actually killed or injured animals. The new memo would narrow that reach. It aligns with a larger administrative push to limit how far the law extends into routine work like building, shipping, and forestry, unless there is proof of intent to harm.
How this fits a broader rollback on “harm” and habitat
The memo arrives after a separate rulemaking removed the long-standing regulatory definition of “harm” that covered habitat changes that actually kill or injure wildlife. That earlier step pulled back a major tool used to manage “incidental take” in projects. Lawyers warned that removing “harm” while leaving no replacement could raise conflict and lawsuits over what counts as unlawful conduct and when companies must seek permits or modify plans. The memo now focuses the standard even more on intent.
Critics argue these changes weaken the law’s power where most losses occur: in everyday activities that disrupt breeding, nesting, and migration. They say species die from chains of events, not only from poaching or direct killing, and that ignoring foreseeable indirect harm invites more loss. Supporters of narrower rules counter that landowners, ports, and utilities need clear, limited liability. They argue that strict rules on incidental harm create red tape, slow jobs, and expand the law beyond what Congress wrote, especially when harm was not the goal.
The law and the precedent the fight revolves around
The Supreme Court’s 1995 decision in Babbitt v. Sweet Home upheld agency power to treat habitat changes as “harm” when they actually kill or injure wildlife. That ruling gave legal cover for broader enforcement and for permits that allowed some incidental take with mitigation. The current memo and the recent “harm” rollback push in the opposite direction. They aim to confine “take” to direct, intentional acts against animals, not indirect or accidental consequences of lawful work.
The Trump administration has further reduced protections for endangered species under the Endangered Species Act through a new internal memohttps://t.co/OPVAz9cAMH
— Rachel Frazin (@RachelFrazin) September 17, 2026
This clash reflects a deeper frustration that many Americans share. People on the right see heavy rules that burden work and raise costs without fixing problems. People on the left see powerful interests shaping policy to avoid responsibility when their actions harm the commons. Both camps often believe Washington answers first to insiders. This memo will test whether federal agencies still hold industry to account when wildlife is harmed, or whether the bar for liability now sits so high that only obvious poaching gets punished.
Sources:
insiderpaper.com, biologicaldiversity.org, eelp.law.harvard.edu, nytimes.com
