Feeling the Heat: the Endangered Species Act and Climate Change
| Publication year | 2020 |
Feeling the Heat: The Endangered Species Act and Climate Change
Andrew J. N. D. Coffey
Georgia State University College of Law, acoffey4@student.gsu.edu
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"Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed."1 Accordingly, Congress and President Richard Nixon enacted the Endangered Species Act of 1973.2 The purpose of the Act was to protect endangered and threatened species of plants and animals and their natural ecosystems while simultaneously bringing the listed species back from the brink of extinction.3 To this day, the Act remains one of the most effective conservation statutes in the world, boasting a 99% success rate of keeping listed animals from extinction.4 However, animal and plant species are currently facing
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another challenge—the "widespread and consequential" dangers posed by climate change.5 Scientists use computer-generated models to analyze long-term weather patterns and the Earth's climate, as well as to predict future climates.6 Climate change has already impacted many species, and these models predict that it is just beginning.7
Currently, when designating a species as endangered or threatened, the U.S. Fish and Wildlife Service (the Service) is required to use the "best scientific and commercial data available" to evaluate the species's status.8 Further, the Service defines a threatened species as one that is "likely to become an endangered species within the foreseeable future."9 On July 19, 2018, the Service proposed several changes to the Endangered Species Act's implementing regulations, including revisions to the rules for critical habitat designation and
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listing species.10 For example, one proposed change would interpret "foreseeable" as extending only as far as the Service "can reasonably determine that the conditions potentially posing a danger of extinction . . . are probable."11
Recently, courts have gone so far as to hold that model-based climate projections looking almost fifty years into the future constitute the "best available scientific . . . data" for declaring the foreseeability of a species's threat of extinction.12 Nevertheless, some argue these models are too speculative to be used as the basis for listing species.13 Issues surrounding climate science, what is the "best science available," and what constitutes "foreseeability" are likely to continue.14
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The following Note discusses the effects that some of these rule changes will have on the Endangered Species Act in the face of uncertain climate change and the science behind it. Part I examines the background of the Act, its current rules, climate change's impact on the environment, and judicial deference to agency interpretations. Part II analyzes how the current rules further the goals of the Act, how the proposed changes to those rules will add to the confusion surrounding the Act's standards, and the role climate change studies have in both of those implementations. Part III will propose a few alternatives for how the U.S. Fish and Wildlife Service and the Endangered Species Act can accommodate climate change, such as a broader ecosystem-based approach, a narrower approach focused on climate-impacted species, and a conjunctive effort to work with other parties.
I. Background
Prompted by growing concern for the environment, President Nixon signed the Endangered Species Act on December 28, 1973.15 Congress legislated the Act after finding that many species of animals or plants were extinct—or were in danger of going extinct—after years of economic growth and development without consideration for the environment or conservation.16 The Act provides a comprehensive legal scheme aimed at defining and listing species that are threatened or endangered, protecting listed species and their critical habitats through recovery plans, and, ultimately, removing species from the list once they have recovered.17
In addition to being a landmark in environmental legislation, the Act experiences extreme popularity with the American public, regardless of political affiliation.18 Conservationists and defenders of
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the Act advocate its success stories, such as saving "iconic American species" like the bald eagle, gray wolf, grizzly bear, and American alligator.19 However, the Endangered Species Act also has its detractors and controversies.20 Critics of the Act attack it for being both unsuccessful and an expensive barrier to economic development.21 Rules concerning critical habitat designation and the listing or delisting process are particularly controversial portions of the Endangered Species Act.22
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A. Listing and Delisting Species: The Best Science and the "Foreseeable Future"
In order to receive protection under the Endangered Species Act, the U.S. Fish and Wildlife Service must first designate a species as endangered or threatened.23 The Service is required to make these determinations "solely on the basis of the best scientific . . . data available" at the time of the listing.24 For example, in order to classify a species as "threatened," the findings must show that the species is "likely to become an endangered species within the foreseeable future."25 However, the Endangered Species Act does not describe the term "foreseeable future" any further.26 Although the U.S. Fish and Wildlife Service does not define that term in any regulations, the Service has offered a nonbinding interpretation of "foreseeable" to extend as far as the Service can "reasonably rely on predictions about the future."27 Thus, courts have deferred to the Service's interpretation of foreseeable on a case-by-case basis.28
B. Occupied or Unoccupied: Designating "Critical" Habitat
Habitat loss continues to be one of the largest threats to wildlife.29 Therefore, when listing a species as endangered or threatened, the
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U.S. Fish and Wildlife Service must also designate "any habitat" of the species that is considered critical "to the maximum extent prudent and determinable."30 However, the Service can also decide not to designate "critical habitat" if it is not prudent.31 The Endangered Species Act defines critical habitat differently for areas occupied and unoccupied by the species at the time of listing.32
Although the U.S. Fish and Wildlife Service should not normally include the entire area the endangered or threatened species occupies as its critical habitat,33 the Service can change its designation over time as appropriate.34 When making the final designation, the Service must do so "on the basis of the best scientific data available."35 Critical habitat designation, though not directly restricting private action, is often seen by some as an overreach of federal power affecting private land use, and, consequently, the value of the land itself.36
C. Climate Change: A Global Concern or Mere Speculation?
Although habitat loss and human development are the leading threats to listed species, climate change increasingly threatens species as well.37 Climate change refers to the Earth's response to the
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increased concentration of greenhouse gases, such as carbon dioxide and methane.38 Climate studies show rising temperatures around the globe.39 Retreating tree lines, melting polar ice caps, and rising sea levels are just some of the impacts already seen from climate change.40 Possible future impacts include an increase in severe storms, a decrease in the availability of fresh water, and an increase in the extinction rates of species.41
In order to study climate change, scientists use climate models to predict how average conditions will change over long periods of time.42 These models allow scientists to draw conclusions on past and future climate systems and determine whether abnormal events are the result of climate change or regular climate variation 43 Scientists use samples from trees, ice, and coral, as well as carbon dating, to gather data and increase the accuracy of climate models.44 The collected data allows scientists to establish baselines for typical
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climates that they then test using variables such as increased carbon dioxide to estimate sea level rise, temperature increase, and other events.45 Scientists also use past events to test model accuracy, reasoning that if a model can correctly predict past events we know occurred, then it should be able to correctly predict future events.46
However, scientists must account for an array of variables such as temperature fluctuations and ocean currents; therefore, climate models always have some level of uncertainty47 Despite this, scientists believe that twenty-first century models are reasonably accurate since they are based on well-founded principles of earth system processes.48 In fact, the most recent report published by the Intergovernmental Panel on Climate Change (IPCC)—the world's leading climate scientists—revealed that the threshold for the most severe effects of climate change is actually almost one degree Fahrenheit lower than scientists believed it to be just a few years ago.49 The report discusses previously unknown, immediate consequences of climate change, putting Earth at a "[s]trong [r]isk of [c]risis as [e]arly as 2040."50
D. Judicial Review: Deferring to Agency Interpretation
It is an established principle that courts will accept agencies' reasonable interpretations of ambiguities in the statutes they regulate.51 Courts will set aside agency actions when, for example,
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the action is arbitrary or capricious or in excess of statutory authority.52 The three leading theories of statutory interpretation are textualism, intentionalism, and purposivism.53 Following the textualism theory, courts look at the plain meaning of the statute's text.54 Courts consider dictionary definitions of terms at the...
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