CHAPTER 9 THE ROLE OF CLIMATE CHANGE IN ESA DECISIONS

• Jurisdiction: United States

Endangered Species Act
(Nov 2015)
CHAPTER 9
THE ROLE OF CLIMATE CHANGE IN ESA DECISIONS
Murray Feldman
Partner
Environment, Energy, and Natural Resources Group
Holland & Hart LLP
Boise, Idaho
Andrew Mergen
Deputy Section Chief
Appellate Section, Environment & Natural Resources Division
U.S. Department of Justice
Washington, DC ¹

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MURRAY D. FELDMAN is a Partner with Holland & Hart LLP in Boise, Idaho. With more than 25 years of experience, Mr. Feldman provides trusted and effective representation in high-profile Endangered Species Act, National Environmental Policy Act, and related litigation and administrative proceedings. Mr. Feldman has worked on client projects and federal court cases throughout the Pacific Northwest, and in California, Colorado, Nevada, New Mexico, Texas, Wyoming, Michigan, and Alabama. His experience includes mining and oil and gas operations; highway construction projects; water, natural gas, and petroleum products pipelines; water resource development infrastructure; industrial facilities; ranch operations; residential home, resort, and subdivision development; and outfitter and guide operations and facilities. He advises clients on the major laws affecting natural resources and environmental matters, including the ESA; NEPA; Federal Land Policy and Management Act; National Forest Management Act; and National Park Service Organic Act. He also advises clients on permitting issues under the Clean Water Act, Clean Air Act, and other federal and state environmental programs. Mr. Feldman has been admitted to practice in California, Colorado, and Idaho, and before the U.S. Supreme Court, and the U.S. Courts of Appeals for the Fifth, Ninth, Tenth, and D.C. Circuits. Prior to joining Holland & Hart, he served as a law clerk to Justice George Lohr of the Colorado Supreme Court. From 2001-2003, he headed Holland & Hart's firm-wide environmental practice group, and from 2009-2012 he was the Boise office administrative partner. He currently chairs the firm's Partner Responsibility Committee.

ANDREW C. MERGEN is Deputy Section Chief in the Appellate Section of the Environment and Natural Resources Division, U.S. Department of Justice, where he supervises a wide variety of litigation. He has presented over 80 oral arguments including in all 13 federal courts of appeals and several state intermediate and supreme courts. In 2009 he was detailed to the Office of White House Counsel to assist in the work leading to the confirmation of the Honorable Sonia Sotomayor as Associate Justice of the Supreme Court. Mr. Mergen has taught at several law schools. He is a graduate of the University of Wisconsin-Madison and the George Washington University School of Law.

Table of Contents

I. Introduction

II. Background--Endangered Species Act Overview

A. Section 4: Listing, Delisting, Critical Habitat, and Recovery Planning

B. Section 7 Consultation with the Service

C. Section 9 Take Prohibition

III. Climate Change and the ESA: The Experience Thus Far

A. NRDC v. Kempthorne

B. San Luis & Delta-Mendota Water Authority v. Jewell

C. Polar Bear

1. Polar Bear ESA litigation as Complex Litigation: The MDL Panel

2. The Polar Bear Listing Rule Litigation

3. Polar Bear 4(d) Rule Litigation

4. Polar Bear Critical Habitat Designation and Litigation

5. Recovery Planning and Five Year Status Review

D. Ribbon Seal

E. Bearded Seal

1. Status Review

2. Rulemaking

3. Challenge to the Rulemaking

F. Wolverine

G. American Pika

IV. Discussion--Lessons on Climate Change From These Examples

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A. Litigation Teachings

B. The Challenges Faced by the Federal Agencies and Their Responses

V. Suggestions for Participants in ESA Decisions

VI. Conclusion--The ESA/Climate Change Interface: What Comes Next?

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I. Introduction

This past August, President Obama traveled to Alaska to speak at the U.S. Department of State's GLACIER² Conference and highlight his administration's agenda for addressing climate change. While there, the President saw firsthand some of the consequences of recent climate change trends, including his hike to Exit Glacier in Kenai Fjords National Park. That glacier has receded more than a mile over the past 200 years.³

In his remarks, President Obama noted that "the Arctic is the leading edge of climate change," and that over the past 60 years, "Alaska has warmed about twice as fast as the rest of the United States."⁴ Among other impacts, the President noted the potential for "[w]armer, more acidic oceans and rivers, and [that] the migration of entire species" could be affected. Indeed, the President went so far as to state that "[c]limate change is already disrupting our ... ecosystems" now and "will accelerate changes to the way that we all live." The President noted emphatically his view that "human activity is changing the climate," and that "[e]verything else is politics if people are denying the facts of climate change." But at the same time, he acknowledged that "[w]e can have a legitimate debate about how we are going to address this problem" and offered that "we are going to do some adaptation."⁵

While discussing climate change issues and governmental, societal, and policy responses at that broad level, President Obama's remarks also highlight the ongoing consideration and development of the role of climate change and climate change effects in ES A decisionmaking. Currently the Services, conservation scientists, industry, environmental groups, and others are working to address, understand, and apply those concepts.

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The role of climate change considerations in ESA processes first gained widespread visibility in 2008 with the Fish and Wildlife Service's listing of the polar bear as a threatened species, the first charismatic megafauna species to be listed based on future threats to its habitat attributed to climate change effects. Since that time, the Services have addressed several species listings--and delistings--that incorporated climate change considerations, and have had to integrate climate change considerations into Section 7 consultations and biological opinions. A number of these decisions, consistent with the President's observations, concerned Arctic species, while others addressed marine species or terrestrial or aquatic species found primarily within the continental United States.⁶

From this developing body of decisions, we can sift through some of the patterns of how climate change considerations and effects are both influencing and being factored into ESA decisions. To date, there is no overarching single paradigmatic approach to addressing climate change in ESA decisions. Rather--as the President hinted--there is an adaptation of existing ESA frameworks and processes to incorporate climate change considerations and effects on a case-by-case basis as these situations arise in both the administrative and judicial decisionmaking contexts. From examples of the polar bear, ribbon seal, bearded seal, wolverine, American pika, and more, we can begin to see what lessons may be drawn from these situations and what policy, regulatory, or other suggestions there may be for a continuing adaptation of considering climate change factors in ESA decisions. That is the focus of this paper.

II. Background--Endangered Species Act Overview

The ESA was enacted, in part, "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species."⁷ The Act is administered by the U.S. Fish and Wildlife Service (FWS) in the Department of the Interior and the Department of Commerce's National Oceanic and Atmospheric Administration--National Marine Fisheries Service (NMFS) (collectively, the Services).⁸

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A. Section 4: Listing, Delisting, Critical Habitat, and Recovery Planning

Once listed as threatened or endangered under section 4,⁹ species are subject to a range of protections under the ESA, including critical habitat designation, recovery planning, consultation requirements for federal actions, and prohibitions on take of the species.¹⁰ An endangered species is one that is "in danger of extinction throughout all or a significant portion of its range."¹¹ A "threatened" species is one that is "likely to become an endangered species within the foreseeable future."¹²

The ESA requires the Services to designate a species as endangered or threatened based on the presence of any one of the following five factors:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;

(B) overutilization 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. ¹³

The Services must make this determination "solely on the basis of the best scientific and commercial data available,"¹⁴ and after taking into consideration efforts by the states or foreign governments to protect the species by conservation practices or other measures. The Services also consider whether the species has been identified as in danger of extinction by a state agency or agency of a foreign government that is responsible for the conservation of fish, wildlife, or plants.¹⁵

Listing can be accomplished on the initiative of the Services or in response to a petition from "an interested person."¹⁶ When either of the Services receive a petition to list a species, within 90 days the agency must determine whether the petition presents "substantial scientific or commercial information indicating that the petitioned action may be warranted"--the "90-day

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finding."¹⁷ If the 90-day finding is affirmative, within 12 months the Services must make a finding that either: (1) listing is not warranted...