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

• Date: 01 August 2009

39 ELR 10750 ENVIRONMENTAL LAW REPORTER 8-2009

Comment on Climate Change and

the Endangered Species Act: Building

Bridges to the No-Analog Future

by Wm. Robert Irvin

Wm. Robert Irvin is Senior Vice President for Conservation Programs at Defenders of Wildlife. He is co-editor, with Donald

C. Baur, of Endangered Species Act: Law, Policy, and Perspectives (American Bar Association 2002, 2d ed. forthcoming).

With one of the more memorable opening lines

in the annals of legal scholarship,1 J.B. Ruhl

has skillfully set forth the promise and perils of

addressing global warming’s impact on imperiled species

under the Endangered Species Act (ESA).2 But while the pika

may indeed be toast, other species aected by climate change

have a better chance of surviva l and, as Ruhl notes, the ESA

can play a critical role in ensuring it.

A recent study has found that the eects of climate change

already underway will be with us for a millennium or longer.3

With this grim forecast, the need to reduce greenhouse gas

emissions, known as mitigation, is even more acute, in order

to stave o even worse irreversible impacts of climate change.

At the same time, the need to focus additional attention on

adaptation—ta king measures to a ssist wildlife survival in

the face of climate change—i s also greater, since the eects

of climate change wil l be with us much longer than previ-

ously thought.

e ESA can be usefu lly employed to address both

mitigation and adaptation. Starting with the determina-

tion whether to list a species as threatened or endangered,

the ESA can generate and focus attention on the impacts of

climate cha nge on wildlife. While the pika may not garner

much public attention, the prospect of polar bears becoming

extinct due to melting of t heir sea ice habitat ha s brought

widespread attention to the impacts of climate change and

the need to reduce greenhouse gas pollution. As the list of

species threatened by climate change inevitably grows, the

imperative to address the causes of climate change, as well as

to implement mea sures to help threatened wildlife survive,

will grow concomitantly.

1. J.B. Ruhl, Climate Change and the Endangered Species Act: Building Bridges to

the No-Analog Future, 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)).

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

3. Susan Solomon et al., Irreversible Climate Change Due to Carbon Dioxide Emis-

sions, 106 P. N’ A. S. 1704, 1704-05 (Feb. 10, 2009), available at

http://www.pnas.org/content/106/6/1704.full.pdf+html (last visited May 18,

2009).

In addition to focusing attention on the problem of cli-

mate change, the ESA can a lso address climate change

impacts on species and habitats. Ruhl argues, correctly, that

the ESA can be usefully employed to address other threats to

species imperiled by climate change. is principle, build-

ing resilience by reducing other st ressors, is one of the key

steps in helping wildlife survive climate change,4 or, as Ruhl

puts it, to help wildlife successfully cross the bridge to the

no-analog future, a world in which ecosystems have been

reshued as a result of climate change. For example, using

the ESA’s prohibition of take under §95 or interagency con-

sultation provisions under §76 to limit habitat destruction

from causes other than climate change, particularly in area s

that may be necessary for species migration in response to

climate change, might be a key strategy for assisting wildlife

adaptation to climate change.

Although Ruhl counsels against doing so, the ESA can

also be used to address the impacts of new sources of green-

house gas pollution. While there may be political or pru-

dential concerns with using the ESA this way, there is no

statutory bar to such considerations. Indeed, the absence of

any such statutory limits led the Bush Administration, on

its way out of oce, to promulgate regulations pursuant to

§4(d) of the ESA7 excluding emitters of greenhouse gas pollu-

tion outside the current range of polar bears from being con-

sidered as causing prohibited take of polar bears.8 Similarly,

the Bush Administration promulgated regulations largely

4. Lara J. Hansen & Jennifer L. Biringer, Building Resistance and Resilience to

Climate Change, in B T: A U’ M  B R-

  R  C C  N S 9-13 (Lara

J. Hansen et al., eds., WWF 2003) available at http://assets.panda.org/down-

loads/buyingtime_unfe.pdf (last visited May 18, 2009).

5. 16 U.S.C. §1538(a)(1), ELR S. ESA §9(a)(1).

6. Id. §1536(a)(2).

7. Id. §1533(d).

8. Endangered and reatened Wildlife and Plants; Special Rule for the Polar

Bear, 73 Fed. Reg. 76249 (Dec. 16, 2008). President Obama’s Interior Sec-

retary, Ken Salazar, subsequently announced he was retaining this rule. See

News Release, U.S. Department of the Interior, Salazar Retains Conser vation

Rule for Polar Bears (May 8, 2009) available at http://www.doi.gov/news/09_

News_Releases/050809b.html.

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