NEWS: Schiff, Huffman, Whitehouse, Dingell, Beyer, and Colleagues Demand Answers on Trump Administration’s Effort to Gut Endangered Wildlife Protections

Lawmakers warn administration’s changes would leave protected species vulnerable to foreseeable deaths and habitat destruction Washington, D.C. – Today, U.S. Senator Adam Schiff (D-Calif.), member of the Senate Committee on Environment and Public Works and Ranking Member of the Fisheries, Water, and Wildlife Subcommittee; U.S. Representatives Jared Huffman (D-Calif.-02), House Natural Resources Committee Ranking Member; Debbie Dingell (D-Mich.-06) and Don Beyer (D-Va.-08); and U.S. Senator Sheldon Whitehouse (D-R.I.), Ranking Member on the Senate Committee on Environment & Public Works, led 37 other Democratic lawmakers in demanding answers from Interior Secretary Doug Burgum and Commerce Secretary Howard Lutnick on the Trump administration’s attempts to gut core Endangered Species Act (ESA) protections by reinterpreting what the agencies consider “incidental take” and “harm” in memoranda to federal employees. The lawmakers warned the reinterpretation would strip protections from wildlife killed or injured by otherwise lawful activities, even when those deaths and injuries could be foreseen. Under the administration’s interpretation, the law’s prohibition on killing or injuring protected wildlife would apply only when someone deliberately targets a protected species. The lawmakers warned this would undermine decades of safeguards that allow economic activity to proceed while requiring commonsense steps to prevent wildlife deaths and injuries. “For decades, the ESA has provided a framework for allowing economic activity to proceed while requiring reasonable measures to avoid and minimize harm to threatened and endangered species. These memoranda would undermine that framework by removing incentives to prevent foreseeable wildlife deaths and injuries,” the lawmakers wrote. The letter challenges two identical internal memos issued September 14 by U.S. Fish and Wildlife Service Director Brian Nesvik and National Oceanic and Atmospheric Administration General Counsel John Luce. The memos direct staff to interpret “take” — which includes killing or injuring protected wildlife — as covering only intentional actions targeting those animals. The lawmakers are demanding an explanation of the legal basis for that interpretation and whether activities that could foreseeably kill or injure endangered species still require permits. The directives came as the Trump administration eliminated the longstanding regulatory definition of “harm,” which covered habitat destruction that kills or injures protected wildlife. Both changes took effect the same day, threatening protections for endangered animals and the places they need to survive. “Any reinterpretation that could eliminate protections for these species is a serious and troubling departure from that framework and would undermine the law’s implementation,” the lawmakers wrote. The lawmakers requested responses by November 30, 2026, including what protections would remain for species threatened by habitat destruction and whether states and Tribes were consulted. They also asked whether Interior would suspend implementation until it publicly explains its legal reasoning and assesses the consequences for endangered wildlife. “The Services must abandon this approach and preserve the ESA’s longstanding protections for threatened and endangered wildlife and the communities that depend on them,” the lawmakers concluded. Additional House signers included Representatives Becca Balint (D-Vt.), Suzanne Bonamici (D-Ore.), Julia Brownley (D-Calif.), Ed Case (D-Hawai’i), Steve Cohen (D-Tenn.), Jasmine Crockett (D-Texas), Diana DeGette (D-Colo.), Mark DeSaulnier (D-Calif.), Sarah Elfreth (D-Md.), Dwight Evans (D-Pa.), Glenn Ivey (D-Md.), Raja Krishnamoorthi (D-Ill.), Mike Levin (D-Calif.), Sarah McBride (D-Del.), Dave Min (D-Calif.), Kevin Mullin (D-Calif.), Frank Pallone Jr. (D-N.J.), Scott Peters (D-Calif.), Emily Randall (D-Wash.), Deborah Ross (D-N.C.), Mary Gay Scanlon (D-Pa.), Melanie Stansbury (D-N.M.), Dina Titus (D-Nev.), Rashida Tlaib (D-Mich.), Jill Tokuda (D-Hawai’i), and Debbie Wasserman Schultz (D-Fla.). Additional Senate signers included Senators Richard Blumenthal (D-Conn.), Cory Booker (D-N.J.), Martin Heinrich (D-N.M.), Mazie Hirono (D-Hawai’i), Edward J. Markey (D-Mass.), Jeff Merkley (D-Ore.), Alex Padilla (D-Calif.), Jack Reed (D-R.I.), Bernie Sanders (I-Vt.), Chris Van Hollen (D-Md.), and Ron Wyden (D-Ore.). Background: Recently, Senators Schiff and Whitehouse introduced a privileged resolution to reject the administration’s unprecedented attempt to circumvent Congress’s intent when it passed the Endangered Species Act in 1973 and to stop the reversal of a decades-old provision meant to protect our wildlife. The Senators will force a vote in the coming weeks. The full text of the letter can be found here and below. Dear Secretary Burgum and Secretary Lutnick: We write in strong opposition to the U.S. Fish and Wildlife Service’s (FWS’s) and National Oceanic and Atmospheric Administration’s (NOAA’s) – (“the Services”) unlawful reinterpretation of “harm” and “take” in the Endangered Species Act (ESA). In two internal memoranda to staff released on September 14, 2026 – one issued by the FWS Director Brian Nesvik and another from NOAA General Counsel John Luce – the Services reinterpret settled law regarding protections for threatened and endangered wildlife under the ESA. The ESA is one of America’s most successful and widely supported environmental laws. The memoranda reinterpret unlawful “take” under the ESA to only include intentional actions targeting threatened and endangered species. Under this interpretation, incidental killing, injury, or other forms of take resulting from otherwise lawful activities would fall outside the ESA’s protections. With nearly a third of America’s wildlife at risk of extinction, we should bolster our efforts to protect threatened and endangered species, not weaken them. This reinterpretation raises concerns about the future of the ESA’s incidental take permitting system. For decades, the ESA has provided a framework for allowing economic activity to proceed while requiring reasonable measures to avoid and minimize harm to threatened and endangered species. These memoranda would undermine that framework by removing incentives to prevent foreseeable wildlife deaths and injuries. This illegal reinterpretation of take, combined with the Department of the Interior (DOI) and the Department of Commerce (DOC) rule rescinding the regulatory definition of “harm” under the ESA, which went into effect on September 14, 2026, would render Section 9 prohibitions hollow, in essence only preventing purposeful take of an animal. Until September, the Services had long recognized that significant habitat modification or degradation could constitute “harm” because it could have indirect impacts on the survival of an animal. These new memoranda attempt to entirely eliminate any guardrails on incidental take. We have worked in Congress to safeguard the ESA and ensure federal agencies carry out their duty under the ESA to prevent extinction and recover species. We are alarmed by the enormous consequences the interpretation could have for species across the country. To better understand the Services’ position and assist the oversight of the House Natural Resources Committee and the Senate Environment and Public Works Committee, please respond to the following questions by November 30, 2026: Do the September 14, 2026 memoranda represent the official legal position of DOI and the DOC? If so, when did it take effect, and what legal guidance did DOC and DOI issue to field offices regarding its implementation? What statutory language and legal precedent support the memoranda’s conclusion that incidental killing or injury of endangered species does not constitute a prohibited “take” unless the activity was specifically intended to target the animal? How do DOI and DOC reconcile the new interpretation with the Supreme Court’s decision in Babbitt, which upheld the inclusion of habitat modification that kills or injures protected wildlife within the ESA’s definition of “harm”? Do DOI and DOC continue to require incidental take permits for activities that may foreseeably kill or injure endangered species? If the memorandum changes those requirements, please describe how. What protections would remain available for endangered species whose threats involve incidental take, including incidental harm and habitat destruction, from otherwise lawful activities? Did DOI and DOC consult with states, Tribes, or other relevant stakeholders before issuing or distributing the memorandum? If so, please describe the nature and timeline of such consultations. Will DOI suspend implementation of the memorandum pending a public explanation of its legal basis and an assessment of its implications on the ESA? The ESA has provided a framework for protecting endangered wildlife while allowing economic activity to continue with appropriate safeguards for over 50 years. Any reinterpretation that could eliminate protections for these species is a serious and troubling departure from that framework and would undermine the law’s implementation. The Services must abandon this approach and preserve the ESA’s longstanding protections for threatened and endangered wildlife and the communities that depend on them. Please contact the Natural Resources Committee Subcommittee on Water, Wildlife and Fisheries minority staff at (202) 225-6065 with any questions about this request. We look forward to your prompt response to this oversight request. ###