The Trump Administration Defangs the Endangered Species Act

From The New York Times, [music]. I'm Rachel Abrams and this is The Daily. >> [music]. >> In its second term, the Trump. administration has escalated its efforts. to roll back environmental regulations. [music]. >> The Trump administration is moving to. open up a large chunk of Alaskan. wilderness to oil and gas [music]. drilling that. >> With the stroke of a pen, President. Donald Trump has cut Bears Ears at Grand. Staircase-Escalante National [music]. Monuments down to a tenth of their size.

>> The Trump administration is moving. forward with plans to repeal a rule. protecting millions of acres of roadless. forest. >> [music]. >> Many of these actions were expected by. conservationists, but last week stood. apart as it became clear that one of. America's bedrock [music] environmental. laws, the Endangered Species Act, appeared to be losing some of its most. important protections. So today, I speak with my colleague. Catrin Einhorn [music] about what is. changing and what impact it could have. on the country's most vulnerable animals. and ecosystems. [music].

It's Monday, September 21st. Catrin Einhorn, welcome to The Daily. >> Thank you so much. >> Catrin, I think that at this point, everybody has this sort of general sense. that the Trump administration has been. rolling back a lot of different. environmental protections as part of. this sort of broader push to deregulate. You have been covering though this huge. escalation against what I think is. probably one of the most iconic. protections in the country, which is the. Endangered Species Act. Just remind us.

briefly what that is. >> Yeah, I mean, it's a really landmark. law. It's half a century old now and it. protects in the US more than 1,600. animals and plants that are threatened. with extinction. You know, it lists them. as either threatened or endangered. And. you know, the law does a lot of things. One long-standing rule is that you have. to take steps to avoid accidentally. destroying a species living in a place. No matter who you are, if you're a.

person building a house or a company. logging a forest. And the Trump. administration has been taking measures. to weaken the law in all kinds of ways. It's part of his deregulatory agenda, which he's really proud of and talks. about a lot. They did some of that work. in his first term, and now during the. second term, the administration has been. more aggressively trying to strip. protections in the act. In this past. week, we got access to a memo outlining. intentions to go even further. It shows.

that they're trying to strip a really. core aspect of this law where they're. arguably telling people you won't get in. trouble for killing endangered species. so long as you didn't mean to target. them, which is an enormous change in the. protections that endangered species have. had in this country. >> Before we get into the specifics of how. that is happening, I want to hear a. little bit of the history of the. Endangered Species Act. Like, what does. it actually say, and what were its goals. initially? >> I think it helps to go even a little bit.

further back to like the late 1800s and. the early 1900s. A lot of very prominent. species had been hunted to near. extinction. Bison is really the iconic. example. Passenger pigeons had actually. been hunted to extinction. They are. extinct. They used to be so abundant. that they would like darken the skies. >> Wow. >> Wolves, beavers, even white-tailed deer. Their populations had collapsed because. of overhunting. And so, at first, conservation in the US was really just. about recovering species, managing.

hunting and fishing for more sustainable. populations. And then over time, scientists and other. conservationists really came to. understand the importance of habitat and. ecosystems on which species depend. And. this ultimately leads to a more holistic. conversation about what kind of. protections animals needed. >> Okay, so this conversation starts, what. happens next? >> Well, we're in like the early 1970s, right? And the environmental movement has.

gained huge traction. >> [music]. >> I don't think there's any other issue, viewed in its broadest sense, which is. as critical to mankind as the issue of. the quality of the environment in which. we live. >> Let's remember what was happening like. the pesticide DDT was devastating bird. populations. >> Now the oil gushes forth out of control. There is no way to stop it. >> In 1969, there's this record-breaking. oil spill off the coast of California.

>> The Cuyahoga River in Ohio is so loaded. with the waste products of petroleum. distillation. that it is actually in danger of. catching fire. >> The Cuyahoga River in Cleveland catches. on fire. >> We must act and act decisively. It is literally now or never. >> [music]. >> In 1970, the EPA is established. It goes. on to ban DDT. The Clean Air Act, the. Clean Water Act pass, right, shortly. after. >> These problems will not stand still.

for politics. >> [music]. >> or for partisanship. The time has come. for man. >> [music]. >> to make his peace with nature. >> And during this time, President Nixon, of course a Republican, says that. measures in place to conserve species. are not adequate. And he calls on. Congress to pass a more comprehensive. law. >> [music]. >> And they do it almost unanimously, and. it's called the Endangered Species Act. >> And how did it actually work? Like what.

did it say specifically about how to. protect animals or endangered species? >> There are a lot of provisions in the. law, but like one really important thing. that I think we can wrap our head around. and that is important for this. conversation is that it says that you. can't take an endangered animal. And it. notes that the term take means to. harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such. conduct. Okay, so lots of words that. basically mean do not hurt an animal.

that is endangered or at risk of being. endangered. >> Yeah, and a lot of those words are. really sort of clear and sharp, but you. know, one in particular has been a lot. mushier, and that is the word harm. >> [music]. >> What does it actually mean to harm. something? People could interpret that. in different ways, and it leads to this. central question and fight over what. constitutes harm, and therefore what. people and industries can be held. responsible for. And all that gets.

litigated for the first time in a case. in Hawaii in 1979. >> And [music] tell us about that lawsuit. What was that over? >> So, there's a bird in Hawaii called the. palila. It's a gray bird with a yellow. head. It actually has kind of a grumpy. face. It's pretty cute. But like many. [snorts] Hawaiian birds, it's really. been devastated by introduced species to. the island, right? And in this case, the palila was very. affected by deforestation. caused [music] by sheep and goats that. had been introduced. So, these sheep and. goats had gone feral, and they like.

eating the trees that the birds need to. survive. >> Okay. >> But these sheep were popular with trophy. hunters, so the state wanted to leave. some of them. They didn't want to just. eradicate the sheep because they wanted. to leave the sheep for the hunters. And. environmentalists sued. [music]. They actually listed the bird as the. lead plaintiff. >> A bird can be a plaintiff? >> In this case, it was. And the bird's. representatives argued [music] that. damage to the habitat from the sheep. constituted harm, and therefore it was. illegal under the Endangered Species.

Act. But the state of Hawaii said that. no, it was not harming the bird because. it was not directly killing the bird. So, this was really hinging on like, what does harm actually mean? How far. does it go? >> Okay. >> The judge sided with the bird. The judge. rules that damage to the habitat [music]. does constitute harm, and the bird wins. the case. >> Okay, so this is a big deal. >> Yeah, because now you have a judge.

saying very simply that if you can. establish that something causes harm to. this essential habitat, then you're. harming the animal, and the animal gets. the protections of the Endangered. Species Act. And this is a really big. deal because. it speaks to how endangered species are. driven to extinction in the US now. They're rarely hunted outright anymore. Now, it's more that as people transform. land and water, you know, so like. logging for timber, draining for.

agriculture or housing developments, damming, drilling, these species run out. of places to eat, breed, and shelter. >> Mhm. >> And this ruling in Hawaii sparks a. really big backlash from industry and. private landowners who are really like. shocked by the new controls over like. what they could do on their land. And what also happens as part of this is. that Congress actually adds. language to the Endangered Species Act, adds this thing called incidental take.

permits. It's a way for a project to be. approved even if some endangered species. would be harmed. >> How does that work exactly? >> So, developers have to describe the. impact of their action on endangered. species. They have to list ways which. they're going to mitigate it. They may. have to contribute to a conservation. plan that would help the species in some. other location, essentially like an. offset, right? >> [snorts]. >> And this mechanism has actually.

protected a significant amount of land. in the US, and and it's a balance. It's. creating a way for economic activity to. continue while also providing some. species conservation. >> And basically, just so I understand, is. the way this works is if you want to, let's say, build an apartment complex on. top of where a bunch of endangered. salamanders live, for example, and. you're going to crush a bunch of these. salamanders, you basically, if you are. the developer, you need to come up with. a plan to maybe save a bunch of. salamanders somewhere else. That's the. whole like offset permit that you're. trying to get. >> That could be part of it. That's part of.

what you would have to do. >> Okay. And as you said, this is actually. quite successful in terms of. conservation. >> Yeah, but there's another legal case. that's really important to understand in. the context of this very slippery word, harm. >> Okay, and tell us about that case. >> So, in 1990, the northern spotted owl. was listed under the Endangered Species. Act. >> Another bird? Is another bird plaintiff? >> It's another bird. The bird was not the. plaintiff in this case. >> Okay. >> And this owl needs mature or old-growth.

forests. >> [music]. >> in order to survive. And so, some of. these older forests that have been. slated for logging, all of a sudden, were held up. >> [music]. >> And timber interests were really upset. about that. They felt like the. government had overreached here, and. that [music] this definition of harm was. out of line with what the Endangered. Species Act actually allowed. >> Mhm. >> And so, they sued, >> [music]. >> challenging the government's. interpretation of this word, harm. And it goes all the way to the Supreme.

Court, but the Supreme Court upholds the. interpretation of harm, 6 to 3. >> [music]. >> In that decision, Justice Scalia writes a dissent. [music]. And this dissent is going to come to. matter a lot. >> And what does he say in his dissent? >> He's pushing back against the majority. ruling that said this kind of. significant habitat modification that. does count as harm under the Endangered. Species Act. Justice Scalia starts off.

by saying that interpretation quote. imposes unfairness to the point of. financial ruin, not just upon the rich, but upon the simplest farmer who finds. his land conscripted to national. zoological use. And he gives this. example, he's like, you know, if we're. going to interpret it like that, then it. would require us to accept, he says that. a farmer who tills his field and causes. erosion that makes silt run into a. nearby river, which depletes oxygen and. thereby impairs the breeding of. protected fish, has taken or attempted. to take the fish. He's saying this is.

like way too much. He calls it a. ruthless dilation of the word. >> Mhm. >> And then he goes on to make an argument. about intent. He says that to legally. harm an endangered species, you have to. intend to target it. And he really. emphasizes that like this has to be like. affirmative conduct intentionally. directed against a particular animal or. animals. >> Okay, so he's arguing basically for. something much, much narrower. >> Much narrower. And this dissent becomes. very important in the moment we now find.

ourselves in because the notion that. Scalia lays out in this dissent has. become the blueprint for what's. happening today. >> How so? >> So last year, the Trump administration. proposed a rule change, essentially. saying they plan to delete language, regulatory language that defined harm as. extending to certain habitat. They finalized the rule this summer and. it came into effect just very recently. And conservationists were really worried.

about what this would mean for. endangered species. At the same time, at. these agencies, there are questions. about, okay, well, how do we apply the. law now? >> Mhm. >> And so what happened last week is that. the director of the Fish and Wildlife. Service sent out a memo. And I got my hands on it. >> Okay. >> And it went beyond what environmental. [music] lawyers, former agency. biologists, so many of these long-time. people, it went beyond anything they had.

been expecting. We'll be right back. >> So, Catherine, tell us more about what. this memo that you got shows us about. what the Trump administration plans to. do with the Endangered Species Act. >> So, it takes Justice Scalia's dissent. and it applies it really broadly. So, for the death of an animal or the injury. of an animal to be illegal under the.

Endangered Species Act, it has to be. intentional. And so, like, for example, I think this actual quote from the memo. will help people wrap their heads around. it. It says, "A vessel that. inadvertently strikes a whale has not. taken it because the vessel's course was. not set against the whale. 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.". >> So, this is a huge shift, right, Catherine? Because before, this law did. not say anything about intentionally. targeting an animal, but under this new.

interpretation, somebody would only get. in trouble if they saw whale and were. like, "I'm going to kill that whale.". And then somebody maybe overheard them. so that there was some evidence or. corroboration that they intended to kill. the whale. >> That's what it appears. And I mean, when. I got my hands on this memo and I was. reading it to various environmental. lawyers, you know, people who have been. in government, people who have worked on. Endangered Species Act litigation, you. know, for decades, people were really. quite floored that the administration is.

taking it this far. The reason being. is that most endangered animals in this. country. are killed incidentally. They are not. targeted. It's not like, you know, elephants getting poached for their. tusks. >> Right. Right. We were talking about all. these indirect ways that animals get. endangered. >> Exactly. It's draining a wetland, you. know, it's building a dam. It's, you. know, piloting a ship. And so, the concern is. that this potentially disincentivizes.

companies, private individuals from. having to take any kind of like measures. to avoid this kind of collateral damage. to species. >> Mhm. >> So, it's not totally clear what this. memo will mean or how all this will play. out, but these actions feel really. unprecedented. >> You're basically saying that even though. it's not totally clear how everything is. going to shake out, there's still some. questions. Things are not looking good. for endangered animals in this country. >> It would be hard to dispute that. sentence. You are correct. Some of the species in question are so.

critically endangered, there are like. maybe 50 left, right? So, they really. are. on the edge of extinction. And it. certainly seems plausible that some of. these measures could just tip them over. And, you know, I think it's important to. also just sort of acknowledge like the. knock-on effects or the ripple effects. So, when people create these habitat. conservation plans, when land is. conserved, ecosystems are really complex. things. And it ends up creating habitat.

for all kinds of other species. potentially, right? Not just the. salamanders that may need a certain. wetland, but that wetland would then. nurture all kinds of other species. >> Mhm. >> Which may not be on the endangered. species list yet, but might be on the. way there. I mean, all kinds of. biodiversity are suffering losses in the. US and around the world, right? So, there are sort of the direct impacts, and then there are also sort of these. really hard to quantify indirect. impacts, I would say. >> You know, at the risk of sounding like a.

huge jerk here, there feels like just a. little bit of like a zero-sum gameness. to this issue in the sense that the. places where animals live are often. places where humans need stuff, right? Just to say it in like a very simple. way. And it feels inevitable that our. needs, in some instances, will win out. over the needs of animals. The ESA was. obviously an attempt to balance that as. much as possible, but is there a. possibility that the ESA might have been. so strict that it was vulnerable to this. kind of criticism that it was overly.

broad, overly restrictive? >> Yes, so many people make that argument. The government certainly does, right? They say that like the Endangered. Species Act has been burdening American. families and businesses and that they're. restoring common sense, that they're. respecting private property, and that. they're returning to the original intent. of the ESA. Now, even like lots of. conservationists. would say there is way too much red tape. when it comes to all the kinds of hoops.

that you have to jump through, that. there has to be permitting reform. Certainly things should be streamlined. I think there's broad support for that. But what's happening here is not that. These are like really dramatic shifts in. how this law would be enforced. >> In this argument about whether the. scales have tipped too far in one. direction or the other, is anybody. actually measuring either side? Like. what how often businesses get inhibited. or how often endangered species are. wiped off the face of the planet because.

of business? >> I think Americans would actually be. surprised by how few projects are. completely denied because of endangered. species protections. They usually find a. way to go ahead. >> Basically like if you want to build. something, you can probably figure out. some way to build it. You might have to. make a plan, but typically you can go. ahead. >> Exactly. And you know, conservationists. criticize that. I mean, you know, they. say that these enforcement's don't go. far enough and that often we're just.

managing extinction. And that part of. the reason that species aren't. recovering more and aren't actually like. getting removed from the list because. they've recovered is because of this, cuz we're not doing enough to protect. them. >> And now this little protection, this. managed extinction is is kind of gone, basically. >> It's certainly a lot weaker than it was. before last week. >> Given how many people are upset about. all of these changes, what sort of legal. challenges have we seen or or expect to. see? >> So, wildlife advocates and actually a.

bunch of states have already sued over. part of this. Some of this litigation, you know, could. end up going to the Supreme Court. And I. have heard some concerns, you know, given the conservative supermajority on. the Supreme Court, the risk would be. that these changes could be enshrined, which would prevent future. administrations from reversing them. Nevertheless, you know, the folks suing. really feel like they have the law on. their side. I think what we do know is. that these fights are going to drag on,

probably for a long time, even as these. protections are rolled back on the. ground. >> Katrine, you are a biodiversity and. climate correspondent, which means you. literally spend all of your time. reporting mostly on loss of species and. plants and habitats. And so I just wonder, given where we are. in terms of biodiversity collapse, in. terms of climate change, everything that. goes with all of that, what are the. implications for this huge rollback of. protections for the most vulnerable. species in the United States? >> You know, zooming out,

biodiversity loss is a really huge and. underappreciated problem. >> Mhm. >> And. it's interesting. on my beat, like I had one person say to. me at one point, like, "Who cares if. cheetahs go extinct?" You know, some. people think that. Some people like, "Oh, extinctions always happened. It's. not a big deal." Like And it is true. that there's like a natural background. of extinction that would always be. happening. But of course, humans have. raised that so much. >> Mhm. >> And apart from even the extinctions,

there's just like all these species. whose numbers are being depleted. So, you know, if you think of the. endangered species list like the ICU, then there's all these species that are. just sick and they haven't quite gotten. into the ICU yet, but they're headed. that way. >> Mhm. >> And ultimately, [music]. people pursue conservation for a lot of. reasons. Healthy ecosystems. are essential for a healthy economy at. the end of the day. Like our economy. relies on ecosystems that are [music].

filtering our water, giving us clean. air, pollinating our food, like all. that. And actually, like a lot of. business organizations have come out and. said this and and cited biodiversity. loss as as a huge risk for the economy. >> [music]. >> And so, ultimately, this binary between. economic growth and species conservation. really breaks down in the real world in. terms of. >> [music]. >> what all this is ultimately going to. mean for humanity in the long run.

>> [music]. >> Catherine Einhorn, thank you so much. >> Thank [music] you, Rachel. >> We'll be right back. Here's what else you need to know today. >> [music]. >> I arrived here as I do many days of the. week, many weekends, and then once I was. inside where we have magnetometers, >> [music]. >> I attempted to scan my badge. It did not.

work. There was a red beeping light. >> On Saturday, journalists from CNN, MSNBC, and Politico were denied access. to the White House [music] grounds and. had their badges taken. >> I asked why I was not able to get. inside. He said it was above him. And. then. >> President Trump's decision to bar those. three news outlets, announced in a Truth. Social post on Friday, [music]. was so abrupt that it caught some. administration officials off guard. The move represents a stark escalation. in the president's ongoing [music] fight. with the news media, and it sets up a. significant legal clash.

And. the White House has begun drafting. [music] a new executive order that could. further cement President Trump's ability. to control billions of dollars in. scientific [music] grants that are. funded by the National Institutes of. Health. The directive [music] would create a new. committee that could veto biomedical. research grants that do not conform to. President [music] Trump's political. agenda, according to people with. knowledge of the effort. >> [music].

>> Today's episode [music] was produced by. Olivia Nat, Caitlin O'Keefe, Jack. D'Isidoro, and Austa Charney. It was. edited by Lisa Baylin and Rob Zipko. [music] with help from Paige Cowett. And contains music by Dan Powell and Pat. McCusker. >> [music]. >> It was engineered by Chris Wood. Our theme music is by Wonderly. >> [music].

[music]. >> That's it for The Daily. I'm Rachel. Abrams. See you tomorrow.