Alterations to the Endangered Species Act: The Fight Between Development and Conservation
Edited by Elizabeth Swallow
The advent of regulation
Signed in 1973 by President Richard Nixon, the Endangered Species Act (ESA) has protected thousands of species threatened with extinction. Created in response to public concern, the act lists species as threatened or endangered, conserves critical habitats, and facilitates recovery plans to prevent their disappearance from ecosystems (GovInfo). However, the ESA has been the subject of contentious debate among a multitude of interest groups. In recent events, the ESA has been altered by the current administration to allow development in areas previously designated as critical habitats. This has reignited debates over the role of the federal government in protecting the natural environment. Currently, two distinct arguments surrounding the authority of the ESA are battling over this change in environmental law.
The Trump administration rewrites the rules
Returning to actions from its first term, the Trump administration set its sights on revising the ESA. These ambitions came to fruition in a string of rules between July and September 2026.
On July 10th, a rule was finalized that changed the legal definition of “harm.” Per the rule, habitat destruction was removed from the regulatory definition of “harm,” and allowed modifications in critical habitats, so long as species weren’t directly injured or killed. Following up a week later, an additional rule was finalized by the administration narrowing the ESA by ending automatic protections for newly listed threatened species, making it easier for regulators to take economic concerns into account (Reuters). Most recently, on September 14th, an internal memorandum in the Department of Interior outlined a new interpretation of “take.” As illustrated in the memo, “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” (New York Times). Under this new definition, the accidental killing or injuring of an endangered species would not be illegal; only action with the purpose of harming an endangered species would be. This differs greatly from the previous regulation that included accidental harm and required an incidental take permit, requiring entities to consider and minimize any impacts on listed species to avoid prosecution.
The administration argues these changes are necessary to promote economic development previously hindered by the ESA in an overextension of federal power. In an announcement of these modifications, the Department of Interior stated that these changes would “...strengthen American energy independence, improve regulatory predictability, and ensure federal actions align with the best reading of the law” (US Department of Interior). The opposition to these alterations contends that the Trump Administration put economic interests over ecological health and environmental concerns.
Many conservation and environmental groups, including the Center for Biological Diversity, Columbia Riverkeeper, Conservation Law Foundation, Conservation Northwest, Friends of the Wild Swan, Oregon Wild, Sierra Club, Swan View Coalition, and Earthwild Guardians, have opposed these revisions (Earthjustice). The pushback from these conservation and environmental groups stems from what they view as the weakening of crucial environmental protections for species that are integral to ecological health. They argue that because the primary reason a species is listed as endangered is habitat loss that threatens species survival, and that new changes allow for habitat loss and degradation, which contribute directly to extinction. They believe these new rules allow developers to destroy habitats without having to acquire a “take” permit, and leave the “harm” question up to the courts, allowing further degradation (Jordan). They argue that this directly undermines the ability and efficiency of the ESA to protect endangered species, the whole intent and purpose of the act.
Swift action seeks reversal
Shortly after these changes, lawsuits were filed challenging the authority of the administration. Twenty-one state attorneys general filed two joint lawsuits against the administration, asserting that the new rules violate the ESA itself, the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA). They argue specifically that these rules are contrary to the APA and ESA because they ignore the legislative history of the ESA and are an abuse of discretion as they fail to provide a reasoned explanation. They also argue that these rules violate both NEPA and APA because they do not disclose the significant environmental effects of the rules (Attorney General Bonta). They further contend that the use of Justice Scalia's dissent in a 1996 Supreme Court decision that defined “harm” as the ESA’s previous definition ignored the precedents set in this case (Jordan). These legal challenges are imperative to answering questions of whether the previous regulations could be considered overreach of jurisdiction or within the federal government’s power.
In Florida, the Save the Manatee Club and the Florida Wildlife Federation have filed their own lawsuits against the Trump administration over these changes, focusing on protections for local Florida wildlife. Florida is home to fifty federally endangered species and forty-one federally threatened species (Florida Fish and Wildlife Conservation Commission). These two conservation groups in the state have argued that changes to the ESA will seriously threaten these species by minimizing their protections. Elizabeth Neville, director of environmental law and policy with the Save the Manatee Club, condemned the actions of the Trump administration, highlighting her concern for manatees that are currently listed as federally threatened. She states that “manatees hold tremendous cultural, environmental, and economic significance to Florida… environmentally they are a keystone species or umbrella species, so their status tends to be an indicator of the status of the whole ecosystem. And economically, they bring in millions of dollars in tourism and other activities per year” (Bay News 9). Pursuant to the rule changes, the status of these vital species would be increasingly threatened. President of the Florida Wildlife Club, Sarah Gledhill, states that “habitat protections under the ESA don’t just benefit listed species. They help sustain the broader landscapes that support wildlife, including non-listed and game species” (Florida Wildlife Federation).
The results of joint lawsuits filed by state attorneys general and conservation groups such as the Save the Manatee Club and the Florida Wildlife Federation are bound to have lasting impacts on environmental law and the future of the ESA. Whether or not the current rules under the Trump administration are allowed to stand will signal a renewed focus on either economic development or conservation.