Climate Change in the Endangered Species Act: A Jurisprudential Enigma

Date01 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),
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®,, 1-800-433-5120.

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