特朗普政府重构《濒危物种法》：环境监管大倒退与生态危机

Rachel Abrams: From the New York Times, I'm Rachel Abrams and this is the Daily. In its second term, the Trump administration has escalated its efforts to roll back environmental regulations.

News Audio Clips: The Trump administration is moving to open up a large chunk of Alaskan wilderness to oil and gas drilling. With a stroke of a pen, President Donald Trump has cut Bears Ears and Grand Staircase Escalani National 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.

Rachel Abrams: Many of these actions were expected by conservationists, but last week stood apart as it became clear that one of America's bedrock environmental laws, the Endangered Species Act, appeared to be losing some of its most important protections. So today I speak with my colleague Katherine Einhorn about what is changing and what impact it could have on the country's most vulnerable animals and ecosystems. It's Monday, September 21st. Katherine Einhorn, welcome to the Daily.

Katherine Einhorn: Thank you so much,

Rachel Abrams: Katherine. 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.

Katherine Einhorn: 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. And this past week, we got access to a memo outlining intentions to go even further.

Katherine Einhorn: It shows that they are 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.

Rachel Abrams: 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?

Katherine Einhorn: 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.

Rachel Abrams: Wow.

Katherine Einhorn: Wolves, beavers, even white-tailed deer. Their populations had collapsed because of over hunting. 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.

Rachel Abrams: Okay, so this conversation starts what happens next.

Katherine Einhorn: Well, we're in like the early 1970s, right? And the environmental movement has gained huge traction.

Archival Audio Clip: 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.

Katherine Einhorn: Let's remember what was happening like the pesticide DDT was devastating bird populations.

Archival Audio Clip: Now the oil gushes forth out of control. There is no way to stop it.

Katherine Einhorn: In 1969 there's this record-breaking oil spill off the coast of California.

Archival Audio Clip: The Kyhoga River in Ohio is so loaded with the waste products of petroleum distillation that it is actually in danger of catching fire.

Katherine Einhorn: The Kyhoga River in Cleveland catches on fire.

Archival Audio Clip: We must act and act decisively. It is literally now or never.

Katherine Einhorn: In 1970, the EPA is established. It goes on to ban DDT. The Clean Air Act, the Clean Water Act pass right shortly after.

Richard Nixon: These problems will not stand still for politics or for partisanship. The time has come for man to make his peace with nature.

Katherine Einhorn: 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. And they do it almost unanimously. And it's called the Endangered Species Act.

Rachel Abrams: And how did it actually work? Like what did it say specifically about how to protect animals or endangered species?

Katherine Einhorn: 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.

Rachel Abrams: Okay. So, lots of words that basically mean do not hurt an animal that is endangered or at risk of being endangered.

Katherine Einhorn: 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. 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.

Rachel Abrams: And tell us about that lawsuit. What was that over?

Katherine Einhorn: So there's a bird in Hawaii called the palea. It's a gray bird with a yellow head. It actually has kind of a grumpy face. It's pretty cute. But like many Hawaiian birds, it's really been devastated by introduced species to the island, right?

Katherine Einhorn: And in this case, the pilo was very affected by deforestation caused 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?

Katherine Einhorn: 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. An environmentalist sued. They actually listed the bird as the lead plaintiff.

Rachel Abrams: A bird can be a plaintiff.

Katherine Einhorn: In this case, it was and the bird's representatives argued 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?

Rachel Abrams: Okay,

Katherine Einhorn: the judge sided with the bird. The judge rules that damage to the habitat does constitute harm and the bird wins the case.

Rachel Abrams: Okay. So, this is a big deal.

Katherine Einhorn: 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, damning, drilling, these species run out of places to eat, breed, and shelter.

Rachel Abrams: Mhm. And this ruling in Hawaii sparks a really big backlash from industry and private land owners who are really like shocked by the new controls over like what they could do on their land.

Katherine Einhorn: 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.

Rachel Abrams: How does that work exactly?

Katherine Einhorn: 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 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

Rachel Abrams: and basically just so I understand 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.

Katherine Einhorn: That could be part of it. That's part of what you would have to do.

Rachel Abrams: Okay. And as you said, this is actually quite successful in terms of conservation.

Katherine Einhorn: Yeah. But there's another legal case that's really important to understand in the context of this very slippery word, harm.

Rachel Abrams: Okay. And tell us about that case.

Katherine Einhorn: So in 1990, the northern spotted owl was listed under the Endangered Species Act.

Rachel Abrams: Another bird is another bird plaintiff.

Katherine Einhorn: It's another bird. The bird was not the plaintiff in this case.

Rachel Abrams: Okay.

Katherine Einhorn: And this owl needs mature or old growth forests in order to survive. And so some of these older forests that had been slated for logging all of a sudden were held up. And timber interests were really upset about that. They felt like the government had overreached here and that this definition of harm was out of line with what the Endangered Species Act actually allowed.

Katherine Einhorn: And so they sued 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 six to three. In that decision, Justice Scalia writes a disscent and this disscent is going to come to matter a lot.

Rachel Abrams: And what does he say in his descent?

Katherine Einhorn: 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.

Rachel Abrams: Mhm.

Katherine Einhorn: 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.

Rachel Abrams: Okay? So he's arguing basically for something much much narrower

Katherine Einhorn: much narrower. And this descent becomes very important in the moment we now find ourselves in because the notion that Scalia lays out in this descent has become the blueprint for what's happening today.

Rachel Abrams: How so?

Katherine Einhorn: 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?

Rachel Abrams: Mhm.

Katherine Einhorn: 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.

Rachel Abrams: Okay.

Katherine Einhorn: And it went beyond what environmental lawyers, former agency biologists, so many of these longtime people, it went beyond anything they had been expecting.

Rachel Abrams: We'll be right back. So Katherine, 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.

Katherine Einhorn: So it takes Justice Scalia's descent 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.'

Rachel Abrams: 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 a 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.

Katherine Einhorn: 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.

Rachel Abrams: Right. Right. We were talking about all these indirect ways that animals get endangered.

Katherine Einhorn: 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 deincentivizes companies, private individuals from having to take any kind of like measures to avoid this kind of collateral damage to species.

Rachel Abrams: So it's not totally clear what this memo will mean or how all this will play out, but these actions feel really unprecedented.

Rachel Abrams: You're basically saying that even though it's not totally clear how everything is going to shake out, there are still some questions. Things are not looking good for endangered animals in this country.

Katherine Einhorn: 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 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.

Rachel Abrams: 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 someum 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?

Katherine Einhorn: 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.

Rachel Abrams: Basically, like if you want to build something, you could probably figure out some way to build it. You might have to make a plan, but typically you can go ahead.

Katherine Einhorn: Exactly. And you know, conservationists criticize that. I mean, you know, they say that these enforcements 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.

Rachel Abrams: And now this little protection, this managed extinction is is kind of gone basically.

Katherine Einhorn: It's certainly a lot weaker than it was before last week.

Rachel Abrams: Given how many people are upset about all of these changes, what sort of legal challenges have we seen or or expect to see?

Katherine Einhorn: 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.

Rachel Abrams: Katherine, 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 roll back of protections for the most vulnerable species in the United States?

Katherine Einhorn: You know, zooming out, biodiversity loss is a really huge and underappreciated problem.

Rachel Abrams: Mhm.

Katherine Einhorn: 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, extinction's always happened. It's not a big deal.' Like,

Rachel Abrams: and it is true that there's like a natural background of extinction that would always be happening.

Katherine Einhorn: But of course, humans have raised that so much. 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.

Rachel Abrams: Mhm.

Katherine Einhorn: And ultimately, 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 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. And so ultimately this binary between economic growth and species conservation really breaks down in the real world in terms of what all this is ultimately going to mean for humanity in the long run.

Rachel Abrams: Katherine Einhorn, thank you so much.

Katherine Einhorn: Thank you, Rachel.

Rachel Abrams: We'll be right back. Here's what else you need to know.

News Audio Clip: Today, I arrived here as I do many days of the week, many weekends, and then once I was inside where we have magnetometers, I attempted to scan my badge. It did not work. There was a red beeping light. Disabled. I asked why I was not able to get inside. He said it was above him. And then

Rachel Abrams: On Saturday, journalists from CNN, MS Now, and Politico were denied access to the White House grounds and had their badges taken. President Trump's decision to bar those three news outlets announced in a truth social post on Friday was so abrupt that it caught some administration officials offguard. The move represents a stark escalation in the president's ongoing fight with the news media. And it sets up a significant legal clash.

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

Rachel Abrams: Today's episode was produced by Olivia Nat, Caitlyn O'Keefe, Jack Dadoro, and Austin Chatterbait. It was edited by Liz O Balen and Rob Zipco with help from Paige Cowit and contains music by Dan Powell and Pat McCusker. It was engineered by Chris Wood. Our theme music is by Wonderly. That's it for the Daily. I'm Rachel Abrams. See you tomorrow.