Protecting Endangered Species in an Era of Climate Change: the Need for a Smarter Land Use Ethic

• Jurisdiction: United States,Federal
• Publication year: 2015
• Citation: Vol. 31 No. 3

Protecting Endangered Species in an Era of Climate Change: The Need for a Smarter Land Use Ethic

Eric V. Hull

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PROTECTING ENDANGERED SPECIES IN AN ERA OF CLIMATE CHANGE: THE NEED FOR A SMARTER LAND USE ETHIC

Eric V. Hull^*

The most unique feature of Earth is the existence of life, and the most extraordinary feature of life is its diversity.¹

INTRODUCTION

In 1973, Congress responded to the cumulative impacts human activities had on plant and animal species by passing the Endangered Species Act (ESA).² Congress recognized that many of the nation's native plants and animals were in danger of becoming extinct, and created the ESA as a means to protect and recover imperiled species and the ecosystems upon which they depend.³ Two decades later, the international community collaborated to establish the Convention on Biological Diversity dedicated to promoting sustainable development and the conservation of biological diversity worldwide.⁴ Fundamentally, these protection efforts are predicated on the understanding that individual species provide measureable value to society, that biologically diverse ecosystems are more productive, and that ecosystems provide useful services upon which society relies.⁵ Yet, despite significant efforts to protect endangered species,

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in many areas of the world, many species at risk of extinction are moving closer to extinction.⁶ Of the more than 70,000 species that have been assessed, more than 20,000 are threatened with extinction.⁷ The status of many species has not yet been assessed, so the total number of species in decline may actually be much higher.⁸

Human activities continue to dismantle the Earth's ecosystems at an alarming rate, and the impact appears greater than previously understood. Today, most natural systems are impaired to some degree.⁹ Anthropogenic impacts on the global biosphere now control major facets of ecosystem function.¹⁰ Widespread fragmentation and degradation of natural ecosystems continue to drive declines in biodiversity and in ecosystem services that may have profound effects on society.¹¹ The cumulative impact of human exploitation of the natural environment is becoming clear. One recent study suggests

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that the impact has been so significant that the earth may be in the midst of a sixth mass extinction.¹²

Climate change poses a fundamental threat to species survival, but it is not mentioned in the ESA nor in any of its implementing regulations.¹³ The potential impacts of climate-induced changes to ecosystems will likely impede the effectiveness of species protection efforts under the ESA because habitat preservation is critical to preserving imperiled species.¹⁴ Globally, approximately 20% to 30% of plant and animal species are at an increased risk of extinction if climate change continues.¹⁵

Although the impact of climate change and other major environmental stressors on the natural environment has garnered significant attention in the literature, comparatively little attention has been paid to how land use practices in an era of climate change impact species protection efforts.¹⁶ Historic land use regulation designed to separate incompatible uses of land has led to harmful sprawl away from cities into previously pristine areas and compromised ecosystems.¹⁷ Burgeoning human populations continue to convert remote landscapes to create artificial, human-dominated environments that interfere with natural disturbances caused by fire, flood, drought and storm patterns essential to ecosystem health.¹⁸ In many areas, development and use of land has altered local geography and hydrology in such profound ways that species are unable to use remaining land to obtain food and water or to produce offspring.¹⁹

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These changes and others have contributed to a significant decline in species biodiversity. Recent studies have shown that the loss of biodiversity within a system decreases overall system resilience in ways that are nearly equivalent to the introduction of pollutants, invasive species, and other major stressors.²⁰ The loss of species diversity, accompanied with the damage from climate change, will further degrade impaired ecosystems and place greater pressure on the species.²¹

Climate-induced changes in the natural environment are expected to cause dramatic shifts in the geographical distribution of plant and animal species by the end of this century.²² These shifts will present major challenges to local communities seeking to balance the land use needs of burgeoning populations with the requirement to protect imperiled species, and force communities to reevaluate their existing land ethic.²³ This article examines how land use practice and decisions impact species protection efforts under the ESA and considers how these activities could exacerbate biodiversity loss as climate change progresses. Section II examines key provisions of the ESA that are implicated by land use decisions, and addresses how a warming climate impacts implementation of these provisions. Section III considers the impact of climate change on imperiled species and the critical role land use decisions play in responding to climate change. Section IV evaluates historic land use patterns and practices and their impact on species protection efforts, and examines how emerging efforts to guide future land use decisions may not go far enough to protect species affected by climate change. The article concludes that the ESA remains the strongest tool to protect imperiled species, but may be insufficient to meet the challenge

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posed by climate change without changes in policy and the development of a more eco-centric land ethic.

I. THE ENDANGERED SPECIES ACT: A PRIMER

The ESA was enacted to promote the conservation of threatened and endangered plants and animals and to preserve their critical habitats.²⁴ The Act provides a comprehensive legal regime designed to protect imperiled species and the ecosystems upon which they depend.²⁵ It is jointly administered by the National Marine Fisheries Service (NOAA Fisheries) and the United States Fish and Wildlife Service (USFWS), collectively (Services), with each Service having jurisdiction over particular species.²⁶ The primary goal of the Act is to return imperiled species to a point where protection under the Act is no longer required.²⁷ Today, more than 1,300 species are protected under the ESA because they are either threatened or endangered with future extinction.²⁸ Unfortunately, the number of species currently afforded protection represents only a fraction of those species at risk from current conditions and from those changes anticipated to occur within ecosystems as climate change progresses.²⁹

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A. ESA: Species Listing and Designation of Critical Habitat

A species must be designated as threatened or endangered to receive protections afforded under the ESA.³⁰ The Act authorizes the Services to identify those species at risk of extinction and to list those species as either threatened or endangered.³¹ This status determination must be made based on the best scientific and commercial data available, taking into consideration any other efforts then underway to protect the species.³² Economic considerations are irrelevant.³³ A species may be listed if that species is threatened or endangered due to any of the following: "(A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization [of the species] for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence."³⁴ These factors are all influenced to some degree by land use decisions.

Once a species is listed under the ESA as endangered, the ESA requires the Services "to the maximum extent prudent and determinable" designate areas as critical habitat for the species.³⁵ In identifying critical habitat, the Services are required to consider those physical and biological features that are essential to the conservation of the species, including habitats that are protected from

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disturbance.³⁶ The area designated may be expanded to include areas outside the geographical area occupied by the species at the time it is listed if essential for the conservation of the species.³⁷ The designation of critical habitat is not required for species listed prior to the 1978 ESA amendments that added critical habitat provisions.³⁸ As a result, many species afforded protection under the ESA do not have a critical habitat designated.³⁹

B. ESA: Prohibitions on Takings and Jeopardy

Once listed, the ESA makes it unlawful for any person, including private and public entities subject to the jurisdiction of the United States, to "take" any endangered species.⁴⁰ This prohibition may be extended to threatened species through regulation.⁴¹ It is also unlawful to cause another party to take a protected species.⁴² Thus, courts may enjoin government acts that authorize other parties to engage in activities that results in the taking of protected species.⁴³ A taking may occur when an action results in significant habitat modification or degradation that causes the death or injury of the listed species, or where it impairs a species' essential behavioral

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patterns.⁴⁴ These behavioral patterns include, but are not limited to, breeding, feeding or sheltering.⁴⁵ Actions that pose an imminent threat of future harm may be enjoined.⁴⁶

Unless otherwise exempted, each federal agency must also insure that its actions will not "jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of such habitat of such species."⁴⁷ Federal agencies that authorize, fund, or otherwise carry out activities that may affect a listed species are required to consult with the relevant service...