Let’s chop the Endangered Species Act to bits, shall we?

Uh-oh. The lawyers have been deployed. They’re trying to parse the wording of the Endangered Species Act to legalize habitat destruction, narrowing its meaning to apply only to the direct killing of organisms, but killing the environment? That does not apply.

The Endangered Species Act (ESA) prohibits the “take” of endangered species. (1) Under the ESA, “[t]he term `take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”  (2) This makes sense in light of the well-established, centuries-old understanding of “take” as meaning to kill or capture a wild animal. (3) Regulations previously promulgated by FWS expanded the ESA’s reach in ways that do not reflect the best reading of the statute, to prohibit actions that impair the habitat of protected species: “Harm in the definition of `take’ in the Act means an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”  (4) NMFS’ definition is materially identical: “Harm in the definition of `take’ in the Act means an act which actually kills or injures fish or wildlife. Such an act may include significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.”  (5)

Then follows many paragraphs of Latin and reiteration of case law, but the intent is clear: the law simply says you can’t “take” wildlife, but we have laws that also say you can’t “harm” wildlife. Those all need to be reinterpreted, because “take” means literally kill individual animals, and that’s the only definition they’re going to use.

The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively referred to as the Services or we) are proposing to rescind the regulatory definition of “harm” in our Endangered Species Act (ESA or the Act) regulations. The existing regulatory definition of “harm,” which includes habitat modification, runs contrary to the best meaning of the statutory term “take.” We are undertaking this change to adhere to the single, best meaning of the ESA.

Habitat modification shall not be policed anymore. You want to extract oil from a watershed? Go right ahead, poisoning the communities downstream is fine, since you’re not using a shotgun to kill the ducks and fish. Oops, you ‘accidentally’ dumped phosphates into the streams in Tennessee, and all the snail darters died? As long as you didn’t “take” the fish, you’re cool. Environmental law doesn’t apply to the environment, but only to individual animals that live in that environment you want to wreck.

Don’t worry! Our government is accepting comments on the changes to the interpretation of existing legislation. Go ahead, tell them that this is ridiculous, enabling habitat destruction is far more lethal than literally killing individual animals.

They won’t care. They’ve got lawyers who are willing to warp the law to enable more short-term profiteering and more long-term annihilation of the landscape. It’s America the Beautiful, don’t you know?