Opinion | A Loophole in the Law, a Threat to Wildlife

The Trump administration has opened the door yet again for profiteers, except this time, humans are not on the receiving end of this loophole. Under a new interpretation of the Endangered Species Act (ESA), anyone found liable for the killing of a protected animal may be off the hook, so long as the animal was not intentionally targeted.

This July, the Trump administration finalized a rule removing the longstanding regulatory definition of “harm” under the ESA, which previously included significant habitat destruction that killed or injured protected wildlife.

The alteration took effect on Sept. 14. Simultaneously, U.S. Fish and Wildlife Service Director Brian Nesvik issued a directive stating that the officials interpreting the law’s prohibition on “taking” endangered species should only view it as applying to actions intentionally directed at particular animals.

Under the directive, cutting down a tree containing endangered bats would not constitute a prohibited take unless killing or capturing those bats was the intended purpose.

At face value, this seems to be an acceptable revision. In a world of virtue, forgoing punishment for individuals and organizations who accidentally kill these animals seems reasonable. Unfortunately, humanity has proven time and time again that not everyone acts in good faith, meaning this revision completely disregards what happens when those accidents could have been anticipated and potentially prevented.

In my eyes, this creates a gray area: where do we draw the line between an unforeseeable accident and a foreseeable consequence of someone’s actions? The answer: We can’t, which leaves the door wide open for people to abuse this interpretation.

Consider a company prepping to clear land for development, all while knowing that an endangered species inhabits the area. Protecting those animals may require additional expenses and delays. Yet even if the company were to ignore these considerations and proceed anyway, resulting in the deaths of those animals, what is to stop them from arguing that their deaths were simply an unintended consequence of the project?

After all, the company only ever wanted to develop the land, not kill the animals.

Do not get me wrong, it would be naive to suggest that every business would deliberately exploit this interpretation. However, I do not think it is moot to question whether some might. We are in an inherently capitalist society where money and profit drive thousands of decisions. Allowing a subjective concept such as intent to be the deciding factor creates an opportunity for companies to treat foreseeable environmental damage as an unfortunate accident rather than something they have a responsibility to prevent. And when avoiding that damage comes at a financial cost, I begin to worry about the precedent our government is setting.

The Trump administration has expressed that these changes are actually beneficial and focus on rehabilitating the ESA to its supposed proper legal meaning, all the while slashing unnecessary regulatory burdens. Yet the law had already established a system of incidental-take permits. These permits allowed lawful development to proceed under conservation plans designed to minimize and mitigate harm to protected wildlife.

In layman’s terms, economic development and wildlife conservation were never inherently incompatible. Developers were just required to utilize the time and resources to account for any environmental consequences related to their activities.

In my eyes, requiring individuals and businesses to account for these consequences is particularly important given that the loss of endangered wildlife extends far beyond individual creatures. Species play pivotal roles within their ecosystems, and their disappearance can disrupt the complex web of relationships among organisms. We have seen numerous times just how difficult these relationships can be to restore once they are broken, making the prevention of such damage all the more important.

Beyond these ecological consequences, though, I believe there is something fundamentally troubling about how we have come to view our responsibility to protect wildlife.

I have always viewed nature as a gift, something that should be appreciated and protected. However, it is not a gift belonging exclusively to humanity. The forests we harvest and the land we develop are not simply empty spaces waiting to be put to use. They are also habitats for animals that depend on those environments for their survival.

Recently, we seem to have placed a heavy emphasis on these places primarily for what they can provide us economically, as though the species inhabiting them should have to justify their continued existence against the profits we might otherwise make. That is why I have such a difficult time accepting an interpretation of the ESA focused on intent rather than prevention.

If the purpose of the ESA is to prevent extinction, then its protections must extend beyond deliberate acts of destruction. These animals were never given the ability to advocate for themselves, so the only voice they have is ours. So I implore you to speak up and speak out against the unspeakable, as we have a responsibility to protect these wonderful creatures from the people who won’t.