the Endangered Species Act Lawson E. Fite Markowitz Herbold Glade - - PowerPoint PPT Presentation

Global Climate Change and the Endangered Species Act

Lawson E. Fite Markowitz Herbold Glade & Mehlhaf, PC (503) 295-3085 LawsonFite@MHGM.com

Global Climate Change and the ESA

There are three “entry points” in the statute:

• Section 4 (listing): 16 U.S.C. § 1533
• Section 7 (consultation): 16 U.S.C. § 1536
• Section 9 (take): 16 U.S.C. § 1538

OSB Environmental & Natural Resources Law Section, October 5, 2012

ESA Section 4

Section 4 establishes a “five factor” analysis to determine whether a species is endangered or threatened:

• (A) the present or threatened destruction,

modification, or curtailment of its habitat or range;

• (B) over‐utilization for commercial, recreational,

scientific, or educational purposes;

• (C) disease or predation;
• (D) the inadequacy of existing regulatory

mechanisms; or

• (E) other natural or manmade factors affecting its

continued existence.

Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

Ecosystem Effects of Climate Change

Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

The Puzzle: Foreseeable Future

Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

• Most species at potential risk from climate change

are still relatively robust

• Species can be listed as “threatened” if it is “likely to

become an endangered species within the foreseeable future” “The foreseeable future. A cliché, and a fuzzy one. How much of the future is foreseeable? Ten minutes? Ten years? Any of it? By whom is it foreseeable? Seers? Experts? Everybody?” William Strunk, Jr. & E.B. White, The Elements of Style 59 (4th ed. 2000).

The Puzzle: Foreseeable Future

Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

• Climate impacts on species are dependent on

forecasting

• In 2008, both NMFS and FWS used mid-century as

the “foreseeable future”

• FWS listed the polar bear as threatened
• NMFS declined to list the ribbon seal
• Both agencies’ decisions were upheld in District

Court

(In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation, 794 F. Supp. 2d 65 (D.D.C. 2011), appeal pending; Center for Biological Diversity v. Lubchenco, 758 F. Supp. 2d 945 (N.D. Cal. 2010))

Why Mid-Century?

Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

Why Mid-Century?

Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

Why Mid-Century?

Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

Forecasting both climate and population is complex

The Puzzle: Foreseeable Future

Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

• The agencies continue to refine their approach
• Other ice seal decisions
• Interior “M Opinion” on foreseeable future focused
• n extent of reliable data

Ringed seal Spotted Seal

ESA Section 4: Listing

Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

• Climate change will continue to be a key issue in

listing decisions

• Polar bear appeal to be argued Oct. 19 (D.C. Cir.)
• Decision to de-list grizzly bear was vacated due to

inconsistency with climate science

• Whitebark pine, key food source, declining due in

part to climate change (currently a candidate species)

(Greater Yellowstone Coal., Inc. v. Servheen, 665 F.3d 1015 (9th Cir. 2011))

ESA Section 7: Consultation

Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

• Section 7 requires Federal agencies to ensure that

their actions are “not likely to jeopardize the continued existence” of any listed species or adversely modify critical habitat

• To meet this requirement, agencies consult with FWS
• r NMFS
• Consultation is only required if an action “may affect”

listed species

• Formal consultation not required if the action is “not

likely to adversely affect” listed species

ESA Section 7: Consultation Regulations

Where does climate change fit?

Action area means all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action. Cumulative effects are those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation. Effects of the action refers to the direct and indirect effects of an action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline. The environmental baseline includes the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process. Indirect effects are those that are caused by the proposed action and are later in time, but still are reasonably certain to

• ccur. Interrelated actions are those that are part of a larger action and depend on the larger action

for their justification. Interdependent actions are those that have no independent utility apart from the action under consideration. Jeopardize the continued existence of means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.

Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

ESA Section 7: Consultation

Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

• Little caselaw generally on section 7, except where

agency ignores climate change altogether

• Biological opinions to date tend to incorporate climate

change into baseline, status of species, and/or cumulative effects

• FWS, and the Interior Solicitor, have issued guidance

that GHG emissions do not trigger consultation based solely on climate change impacts, reasoning that it is not possible to tie specific emissions to specific climate impacts

• No caselaw on this policy yet, but the polar bear 4(d)

rule decision is pretty close

ESA Section 9: “Take”

Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

• Section 9 bans “taking” of endangered species
• Section 4(d) authorizes NMFS/FWS to ban taking of

threatened species

• FWS has issued blanket regulation
• NMFS issues individually
• “Take” means “to harass, harm, pursue, hunt, shoot,

wound, kill, trap, capture, or collect . . .”

• “Harm” may include “significant habitat modification
• r degradation which actually kills or injures fish or

wildlife by significantly impairing essential behavioral patterns”

ESA Section 9: The Polar Bear Rule

Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

• FWS issued a “special rule” under Section 4(d)

defining “take” of the polar bear

• Excluded any activities taking place outside the

range of the polar bear

• U.S. Geological Survey, Forecasting the Rangewide Status of Polar Bears at

Selected Times in the 21st Century at 82 (2007).

ESA Section 9: The Polar Bear Case

Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

• Plaintiffs (CBD, NRDC, Greenpeace) argued that rule

failed to address climate change, thus violating Section 4(d) authority to issue rules deemed “necessary and advisable to provide for the conservation of threatened species.”

• FWS argued to the court that current science makes

it impossible to link specific emissions with specific down-range impacts; thus FWS could not effectively address sea-ice decline through 4(d) rule

• Court upheld the rule under the ESA but noted the

policy debate was outside its purview

ESA Section 9: The Polar Bear Case

Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

• Before issuing the ruling, Judge Sullivan had just

presided over settlement regarding findings for 800+ candidate species

• May have been conscious of the limited resources

and capacity of the scientific agencies

• With polar bears, the MMPA helps
• Rule was remanded under NEPA, so litigation will

resume in 2013 In re Polar Bear, 818 F. Supp. 2d 214 (D.D.C. 2011)

Resources

Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

• Interior M Opinions:

http://www.doi.gov/solicitor/opinions.html

• ESA implementing regulations:

http://www.nmfs.noaa.gov/pr/laws/esa/policies.htm

• ESA Consultation Handbook:

http://www.nmfs.noaa.gov/pr/pdfs/laws/esa_section7_han dbook.pdf

• Summary of the 4(d) decision:

http://www.mhgm.com/our-resources/articles/

• Or email me: LawsonFite@MHGM.com