Reporter Memo: Making sense of the latest attacks on the Endangered Species Act

Attacks from the Trump Administration and Congress could thwart the law's successful track record of preventing extinction

Contacts

Becca Bowe, Earthjustice, [email protected]

Throughout 2026, unprecedented attacks on the Endangered Species Act (ESA) have threatened to dramatically weaken protection for imperiled species. Today, Earthjustice sued to overturn one of the rule changes finalized by the Trump administration - but this legal battle is just one facet of a broader story about an onslaught of attempts to undermine the ESA under this administration and Congress. Read on for a deeper dive into what is being proposed - or has already triggered lawsuits.

A new permitting reform bill quietly takes aim at the ESA. Buried within the text of a 400-page Senate bill called the Bipartisan American Affordability and Jobs Act - which seeks to revamp federal permitting for major development projects - areprovisions sacrificinglongstanding protections for endangered species. Some of the proposed legislative text mirrors that of the ESA Amendments Act, which Republicans tried to advance but then hastily canceled a vote on this past April, on Earth Day, after failing to win support from sufficient members of Congress. Among the proposed changes are shifting responsibilities for "Section 7 consultations," which analyze the harm of federally permitted projects, from federal to state governments. This could create a patchwork of 51 different consultation programs with highly variable levels of funding and expertise, working on shorter timelines, to replace the status quo of entrusting the task to teams of federal officials with decades of institutional knowledge. And states often have financial incentives to facilitate approval of federal projects, such as national forest timber sales and public lands mineral leasing, that provide for revenue sharing with states or counties. Another provision in this bill seeks to change the definition of "best available science" under the Act in a way that significantly restricts admissible scientific research, making it more likely for species to languish without any conservation measures kicking in to bolster their survival. Here is Earthjustice's full analysis on the ESA provisions and other concerns with the permitting bill.

A Trump administration rule change upends a system for protecting 'threatened' species. Today, conservation groups represented by Earthjustice filed a lawsuit challenging the Trump administration's rollback of the U.S. Fish and Wildlife Service's blanket 4d rule. For decades, species designated as "threatened" benefitted from a "blanket" approach that automatically extended to them the same protections as more critically imperiled species listed as "endangered." This "blanket" approach makes sense because the point of protecting a "threatened" species is to prevent its condition from deteriorating to fully "endangered" status. However, the Trump administration issued a new rule this year eliminating those automatic safeguards for species newly listed as threatened, instead creating a more complicated, labor-intensive process. That new, more convoluted process landed simultaneously with deep funding and staffing cuts affecting more than 500 biologists at the Fish and Wildlife Service, impacting the staff members who would be delivering this work. The rule change strains an already overburdened system and threatens to leave hundreds of species newly listed as threatened without protections under the ESA. In its legal challenge, Earthjustice argues on behalf of clients that the rule change cuts against the very intent of the Endangered Species Act.

Earthjustice and partners are in court challenging a radical new legal interpretation of the ESA. In mid-September, a pair of memos from the U.S. Fish and Wildlife Service and National Marine Fisheries Service revealed a radical new legal interpretation from the directors of those agencies relating to the Endangered Species Act. In summary, the memos claim that as long as an individual or entity claims they didn't mean to kill an endangered species, the law can't and won't stop them. The memos, which zero in on the legal interpretation of "take" under the ESA, provide a clear example of how the agencies would interpret the law going forward: "A vessel that inadvertently strikes a whale has not taken it, because the vessel's course was not set against the whale." In mid-July, Earthjustice filed a lawsuit to challenge an earlier sweeping change to the regulatory definition of "harm," which has left countless species vulnerable to habitat destruction. Loss of habitat is the number one cause of species extinction, but this regulatory change tried to exempt habitat destruction from the concept of "harm" that falls within the ESA's "take" prohibition. The so-called take memos flowed from the finalization of this "harm" rule, but dramatically expanded it. This month, Earthjustice amended its challenge against the harm rule with new claims taking aim at these radical new legal memos that seek to undercut the law.

Earthjustice has filed suit challenging another ESA attack that minimizes science and gives outsize weight to "economic considerations."  On behalf of clients, Earthjustice filed an amended complaint Sept. 28 in its lawsuit challenging another rollback from the Trump administration. This rule change gives outsize weight to "economic considerations" when the federal government decides whether to protect an endangered species' critical habitat. Contrary to the intent of the ESA, it would give control to private entities - such as companies seeking to mine, log, or drill - to avoid protecting critical habitat for struggling species when they claim such measures would be too great of an economic burden for them. Green sea turtles, Monarch butterflies and polar bears are among the species that could be impacted. Read the complaint.

The bedrock conservation law, which is championed by around 84 percent of Americans, has kept 99 percent of listed species alive since its enactment in 1973. Weakening the law would thwart that record of success and leave thousands of imperiled wildlife species vulnerable to extinction. At a time when mounting pressures such as climate change, increased habitat loss, and overexploitation have thrown many species' survival into question, this wholesale abdication of responsibility for safeguarding imperiled species is the last thing needed from the federal government.

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