Climate Change in the Endangered Species Act: A Jurisprudential Enigma

• Date: 01 October 2016

10-2016 NEWS & ANALYSIS 46 ELR 10845

Climate Change in the

Endangered Species Act: A

Jurisprudential Enigma

by Barry Kellman

Barry Kellman is Professor of Law at DePaul University College of Law.

Climate change exposes 20-30% of plant and ani-

mal species to an increased risk of extinction in this

century. According to the International Union for

Conservation of Nature (IUCN), more than 22,000 species

may be in jeopardy worldwide.1 It is not clear which species

will be most aected. Large mamma ls at or near the apex

of a food chain (for example, bears) a re vulnerable, but so

are corals, among the least predatory animals on earth. It is

especially unclear what will be the indirect consequences of

loss of biodiversity: As an essential element in an ecosystem

disappears, it is dicult to predict what impact that loss

might have on the entire system. Adding complexity is the

fact that climate change is not a single phenomenon but a

combination of melting ice, ocean acidication, deforesta-

tion, and many other conditions.

What does seem clear is that the extinction will be mas-

sive, approaching if not one of the ve great extinctions in

earth’s history, then perhaps on a scale of the second tier

of extinctions identied by scientists. Also seemingly clear

is that the climate change extinction will be rapid by geo-

logical standards, perhaps over only one century, and at a

certain point will be essentially impossible to stop.2

In the United States, the only legal tool to protect

against such a multispecies catastrophe is the Endangered

Species Act (ESA).3 is is unfortunate. ere a re funda-

mental incongruities between how the ESA has been con-

ceived and the problems for species survival associated with

climate change. When the ESA was drafted, no one could

have foreseen climate cha nge, much less thought seriously

about how the ESA should address species loss on a warm-

ing earth. e ESA’s mechanisms were designed to address

1. International Union for Conservation of Nature (IUCN), Conservation

Successes Overshadowed by More Species Decline: IUCN Red List Update (2015),

http://www.iucn.org/content/conservation-successes-overshadowed-more-

species-declines-%E2%80%93-iucn-red-list-update.

2. ere is an enormous amount of literature on species extinction due to

climate change. See generally E K, T S E:

A U H (2014).

3. 16 U.S.C. §§1531-1544, ELR S. ESA §§2-18 (2012).

types of threats—human physical encroachment on vul-

nerable species’ habitat—that are simply not central to the

threats posed by climate change.

In the typical ESA case, a species is in jeopardy of

extinction due to human activity such as ooding la nd,

mining, o-road vehicle use, or conducting mi litary exer-

cises. Over the four decades since the ESA’s enactment,

the logic of harm caused to species by human activity and

the need, therefore, to curtail or regulate that activity has

made sense. Invocations of the ESA have had to do with

actions that could be controlled; they entailed decisions

about whether to regulate some activity, where and how it

should be done. When such situations have arisen, federal

agencies (the Fish and Wildlife Ser vice (FWS) in the U.S.

Department of the Interior and the National Marine Fish-

eries Service (NMFS) (formerly NOAA Fisheries) in the

U.S. Department of Commerce) have used their authority

to prevent such disturbance, allowing the species to revive

in its natural condition.

But climate change blows up the ESA’s operative man-

date for federal agencies to prevent human disturbance of

especially vulnerable species. Species loss due to climate

change operates on an altogether dierent paradigm, mud-

dling all causal connections between human actions and

harm to a particular species. Climate change means warmer

temperatures, melting ice, rising seas, and perhaps more

invasive competitors. For some species, survival entails

relocating to cooler latitudes because rising temperatures

disrupt the species’ own metabolism or the availability of

food, but relocation may not be a realistic option because

of natural or human obstacles. For other species, survival

may be jeopardized by changing topography that limits its

ability to move throughout its domain. Yet other species

may see their habitats shrunk by rising waters or may be

victims of more frequent and intense storms.

Unlike traditional problems of preserving endangered

species, t here is no spatial connection between the cause

of the jeopardy and the species’ habitat—most greenhouse

gases are emitted far from the a reas t hat endangered spe-

cies inhabit. In a warming planet, human disturbance has

Author’s note: I would like to acknowledge the signicant support

of Casey Williams, J.D., DePaul University College of Law, 2017.

Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.