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

The Puzzle: Foreseeable Future • 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)) 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

Why Mid-Century? Forecasting both climate and population is complex Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

The Puzzle: Foreseeable Future • The agencies continue to refine their approach • Other ice seal decisions • Interior “M Opinion” on foreseeable future focused on extent of reliable data Ringed seal Spotted Seal Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

ESA Section 4: Listing • 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)) Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

ESA Section 7: Consultation • 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 or 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 Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

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

ESA Section 9: “Take” • 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 or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns” Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

ESA Section 9: The Polar Bear Rule • 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 21 st Century at 82 (2007). Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

ESA Section 9: The Polar Bear Case • 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 Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

ESA Section 9: The Polar Bear Case • 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) Climate Change & the ESA -- OSB ENR Section -- October 5, 2012

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