Trump Administration Has Illegally Gutted Endangered Species Act

By Mark J. Palmer

We have discussed legislation pending in the Senate to weaken important provisions of the Endangered Species Act (S. 5653) and restrict right whale regulations (HR 9436).

In the meantime, the Trump administration has taken illegal action to weaken the Endangered Species Act (ESA) through regulations. Despite widespread public opposition to these regulations, they have continued apace, effectively, for the moment, gutting many of the wildlife protections of the Act.

Not all is lost: Courts have often determined in the past that similar regulations imposed by the Trump administration to gut the ESA were in fact illegal and had to be returned to the original wording. During his four years in office, President Joseph Biden issued new regulations to reverse most (but not all) of the first Trump administration’s weakened regs. for the ESA. A new president in 2029 could also take such action.

Many of our colleague organizations have filed lawsuits to confront these new regulations. The International Marine Mammal Project of Earth Island Institute is working on several pending lawsuits to protect whales from the Trump administration’s proclivity for ignoring adverse environmental effects, including species extinction.

Here is a list of regulations degrading the ESA imposed by the Trump administration:

Weakened “Harm” Definition: In September, the administration replaced the existing definition of “harm” in the ESA with a very narrow view that violations could only occur for intentional harm. In other words, hitting a whale with a ship or entangling a whale with ropes and nets is no longer prohibited for endangered species. Few endangered species are harmed intentionally these days.

Weaken “Take” Limitations: Similarly, the US Fish & Wildlife Service has determined internally that accidental killing or injury (defined as “take”) is no longer illegal. Logging, mining, oil drilling, off-road motorcycles, and burying wetlands are no longer prohibited takes of endangered species. We anticipate the National Marine Fisheries Service will likely follow suit for whales and other marine mammals.

Threatened Species No Longer Protected: “Threatened” species, a category of species that are not yet endangered but likely to become so, now only get protection from take on a case-by-case basis, instead of being automatically protected.

Economic Effects Can Trounce Habitat Protection: The vast majority of species on the Endangered Species list are not in danger from direct killing, but rather from their habitat disappearing. The “critical habitat” for such species is supposed to be protected to prevent extinction, but new regulations allow economic considerations to trump critical habitat designations.

God Squad Removed Protection from Gulf Species to Promote Offshore Oil Drilling: The Endangered Species Act does allow a top-level government group (nicknamed the God Squad) to remove protections under the Act for species that would otherwise block important projects for public safety, national security, and other critical reasons. Instead, the Trump administration convened the so-called “God Squad” committee to remove protections from Rice’s whales, sperm whales, and sea turtles in the Gulf of Mexico to move forward with new offshore oil drilling.

The many legal challenges filed against these new regulations will take some time to move through the court process.

In the meantime, IMMP and other organizations are working overtime to stop these efforts to kill endangered species in the name of economic progress or the phony case of “national security”. The ESA has been in effect since 1972 and has never interfered with “national security” – in fact, many in the military are proud of the way they protect endangered species.

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