Conservation groups that sued this summer over President Donald Trump’s administration rescinding the regulatory definition of “harm” in the Endangered Species Act updated their legal challenge on Thursday after yet another attack on the landmark law.
The coalition’s supplemental complaint explains to a federal court in Seattle that since the lawsuit was first filed in July, administrative leaders have directed various agencies to interpret the ESA to mean that only intentionally killing or wounding a protected species is illegal—a shift that critics condemned as “an all-out war on America’s wildlife.”
As the “harm” rescission took effect on September 14, US Fish and Wildlife Service Director Brian Nesvik issued a related memorandum with that interpretation—effectively allowing “incidental” killing. John Luce, general counsel at the National Oceanic and Atmospheric Administration, sent the same directive to eight sections of NOAA.
These memos “violate the plain language and overarching purpose of the ESA; they also lack any reasoned basis, are arbitrary and capricious, and failed to comply with applicable notice-and-comment rulemaking requirements,” the new filing argues, citing the Administrative Procedure Act. The coalition is asking the court to vacate the memos and bar the agencies from using their interpretations of the 1973 law.
“This despicable effort to legalize most killings of endangered wildlife would essentially mean open season on species already on the brink of annihilation,” said Noah Greenwald, endangered species co-director at the Center for Biological Diversity, in a Thursday statement. “It’s the most serious attack on imperiled animals since the Endangered Species Act was passed more than 50 years ago.”
“Without protection against the daily assaults of our modern world, Florida manatees, spotted owls, snowy plovers, and so many other animals that bring color to our world won’t stand a chance,” he warned, noting that “habitat destruction is the single biggest cause of species endangerment and extinction” in the United States and beyond.
Greenwald added that “with this destruction, the perils faced by plants and animals have grown exponentially. Such peril doesn’t come down the barrel of a gun, but it’s still a deadly threat, and the Endangered Species Act can and must protect our imperiled wildlife from this kind of careless killing.”
In addition to the center, the coalition behind the case includes Columbia Riverkeeper, Conservation Law Foundation, Conservation Northwest, Friends of the Wild Swan, Oregon Wild, Sierra Club, Swan View Coalition, and WildEarth Guardians, with legal representation by Earthjustice.
After the memos were exposed last month, Earthjustice attorney Ben Levitan declared that “the government’s new legal position is a prescription for extinction.”
“It says that as long as you claim you didn’t mean to kill an endangered species, the law can’t and won’t stop you,” he stressed. “That’s ridiculous—and a totally illegal, active misreading of the Endangered Species Act. We’ll see the Trump administration in court about this.”