VIII. Conclusion VIII. Conclusion

• Jurisdiction: United States

VIII. Conclusion

Under NEPA, the increasing exposure of EISs and EAs to climate change related challenges will eventually answer many questions about how to address climate change in NEPA documents. In the meantime, increased awareness on the part of agencies and NEPA practitioners of judicial decisions related to climate change, and a serious attempt to include reasonably foreseeable GHG emissions and climate change effects in EISs and EAs, will go a long way toward making NEPA documents more defensible.

On the ESA front, the proposed listing of the polar bear and the delta smelt decision have potentially significant implications for how the Service must address climate change in its administration of the ESA. The Service has recently received a number of petitions to list species that include references to climate change as justification for the listing, and this number will likely continue to increase over the next few year. If a species is listed based on the effects of climate change on its habitat, the agencies may have to analyze the impact of projects that contribute to climate change on such species during Section 7 consultation. Including climate change concerns in biological opinions has the potential to expand a project's area of impacts to a global scale. It is often difficult to quantify anticipated take in a more traditional impact analysis. Determining the extent to which contribution to global warming may result in the take of a listed species in distant locations may prove to be a Sisyphean feat. In any event, the handful of interactions between the ESA and climate change described in this paper are merely the tip of the (quickly melting?) proverbial iceberg.

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ESA Overview

█ Purpose of ESA: To conserve threatened and endangered species and the ecosystems on which they depend

█ Administered by U.S. Fish and Wildlife Service and NOAA Fisheries

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█ Section 4 Listing Determinations

• How a species gets ESA protection

• "Endangered" -- in danger of extinction within all or a significant portion of its range

• "Threatened" -- likely to become endangered in the foreseeable future

• Service directed to designate critical habitat upon listing

• Service-initiated review or by listing petition

█ Section 4 Listing Criteria

• present/threatened destruction, modification, or curtailment of habitat or range

• overutilization

• disease or predation

• inadequacy of existing regulatory mechanisms or

• other natural or manmade factors affecting its continued existence

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█ Section 9 Take Prohibition

• Broadly prohibits "take" of endangered species by "any person" on federal or non-federal lands

• Take is defined as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct"

• Take includes significant habitat modification that actually kills or injures a listed species

█ Section 7 Consultation

• Federal agencies must consult with Service to ensure agency actions do not cause "jeopardy" to species or "adverse modification" of critical habitat

• Service prepares a...