Comment on Climate Change and the Endangered Species Act: Building Bridges to the No-Analog Future

• Date: 01 August 2009

39 ELR 10746 ENVIRONMENTAL LAW REPORTER 8-2009

Comment on Climate Change and

the Endangered Species Act: Building

Bridges to the No-Analog Future

by Donald C. Baur

Donald C. Baur is a partner in the Washington, D.C., oce of Perkins Coie LLP.

Over the 35 years of its existence, the Endangered

Species Act (ESA)1 has given rise to a unique lexi-

con of buzzwords, catch-phrases, and terms-of-art.

e depth and creativity of this vocabulary is not surprising,

given the complex nature of the E SA’s requirements and the

pervasive eect they have had on wildlife conservation and

the management and use of natura l resources throughout

the world.

e ESA, we have heard time and time aga in, is “the pit

bull of environmental laws.” Depending on the commenta-

tor’s perspective, the “pit bull” needs to be either “defanged”

and sent to “obedience school” or “unleashed” and trained to

go for the “jugular vein” of resource development activities.

e ESA is regarded by some a s a “safety net” for species in

the “intensive care unit” and by others as a place where species

go to “check in but never check out.” Nonfederal landowners

entering into contractual habitat conservation plans are enti-

tled to “no surprises” commitments from the federal govern-

ment, just as landowners seeking to do good things for listed

species without fear of regulatory penalties can obtain “safe

harbor.” Secretary Babbitt had his “ve-point plan” for land-

owner incentives, while Secretary Norton sought to advance

“the four C’s”, and Secretary Kempthorne lauded the “coop-

erative conservation” approach to ESA implementation.

In his article Climate Change and the Endangered Species

, Prof. J.B. Ruhl

has added another entry to the ESA edition of Words and

Phrases. Ruhl begins his excellent and timely article about

the eects of global warming on listed species and how the

1. 16 U.S.C. §§1531-1544, ELR S. ESA §§-.

ESA does, and does not, address the problem by informing

the reader: “e pika is toast.”2

e pika, Ruhl explains, is a “tiny rabbit-like species [that]

has the unfortunate trait of being remarkably well-adapted

to the cold, high-altitude, montane habitat of the Sierra

Nevada and Rocky Mountain ranges in the North American

Great Basin.”3 e pika is confronting a threat to its survival

because global warming is reducing its available habitat. e

species has, as a result, become symbolic of the fate of many

other species potentially aected by global warming caused

by greenhouse gas emissions (GHG). If the pika is “toast”

because of climate change, so are many other species.4

As Ruhl describes the dilemma, many species a lready are

experiencing, or will soon encounter, three levels of adverse

eects related to climate change. e most signicant threat

is from primary ecological eects:

[T]he ecological conditions it [the pika and other species

dependent on colder clim ate habitat] needs for survival do

not exist below a particular temperature regime. ey do not

have the option of relocating once the temperature regime

lifts above the pea ks [or alters t he habitat of other species]

which they now call home. Rather, the pika and other spe-

cies with specic ecological needs and li mited migration

capacity are likely to face signi cant threats from t his kind

of rst order change in ecological conditions. reats in this

2. J.B. Ruhl,   

 39 ELR (E. L.  P’ A. R.) 10735 (Aug.

2009) (a longer version of this Article was originally published at 88 B.U. L.

R. 1 (2008)).

3. Id.

4. e other species most frequently mentioned as being potentially at risk from

climate change are: arctic fox, Ashy storm petrel, bearded seal, bowhead whale,

Cook Inlet beluga whale, Caribbean coral, Kittlitz’s murrelet, Pacic walrus,

penguins, polar bear, ribbon seal, ringed seal, spectacled eider, spotted seal,

Steller’s eider, and yellow-billed loon. e Center for Biological Diversity, a

strong proponent of ESA listing of climate change-aected species, states:

“Very few species will escape the burn of climate change. A landmark study

surveying 20 percent of the Earth’s land area oered a stark prediction: 35

percent of the species will be committed to extinction by the year 2050 if

greenhouse gas emission trends continue.” Center for Biological Diversity, Cli-

mate Law Institute, at http://www.biologicaldiversity.org/programs/climate_

law_institute/index.html (last visited Feb. 2, 2009).



        

  

          

           

     

  O  C L  P (2005),

and E S A: L, P, A P

(2002) 

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