Global Climate Change and the Endangered Species Act. Lawson E. Fite Markowitz Herbold Glade & Mehlhaf, PC (503)

Transcription

1 Global Climate Change and the Endangered Species Act Lawson E. Fite Markowitz Herbold Glade & Mehlhaf, PC (503)

2 Global Climate Change and the ESA There are three entry points in the statute: Section 4 (listing): 16 U.S.C Section 7 (consultation): 16 U.S.C Section 9 (take): 16 U.S.C OSB Environmental & Natural Resources Law Section, October 5, 2012

3 ESA Section 4 Section 4 establishes a five factor analysis to determine whether a species is endangered or threatened: (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) over utilization 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.

4 Ecosystem Effects of Climate Change

5 The Puzzle: Foreseeable Future Most species at potential risk from climate change are still relatively robust Species can be listed as threatened if it is likely to become an endangered species within the foreseeable future The foreseeable future. A cliché, and a fuzzy one. How much of the future is foreseeable? Ten minutes? Ten years? Any of it? By whom is it foreseeable? Seers? Experts? Everybody? William Strunk, Jr. & E.B. White, The Elements of Style 59 (4th ed. 2000).

6 The Puzzle: Foreseeable Future Climate impacts on species are dependent on forecasting In 2008, both NMFS and FWS used mid-century as the foreseeable future FWS listed the polar bear as threatened NMFS declined to list the ribbon seal Both agencies decisions were upheld in District Court (In re Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, 794 F. Supp. 2d 65 (D.D.C. 2011), appeal pending; Center for Biological Diversity v. Lubchenco, 758 F. Supp. 2d 945 (N.D. Cal. 2010))

7 Why Mid-Century?

8 Why Mid-Century?

9 Why Mid-Century? Forecasting both climate and population is complex

10 The Puzzle: Foreseeable Future

11 ESA Section 4: Listing

12 ESA Section 7: Consultation

13 ESA Section 7: Consultation Regulations Where does climate change fit? Action area means all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action. Cumulative effects are those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation. Effects of the action refers to the direct and indirect effects of an action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline. The environmental baseline includes the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process. Indirect effects are those that are caused by the proposed action and are later in time, but still are reasonably certain to occur. Interrelated actions are those that are part of a larger action and depend on the larger action for their justification. Interdependent actions are those that have no independent utility apart from the action under consideration. Jeopardize the continued existence of means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.

14 ESA Section 7: Consultation

15 ESA Section 9: Take

16 ESA Section 9: The Polar Bear Rule

17 ESA Section 9: The Polar Bear Case

18 ESA Section 9: The Polar Bear Case

19 Resources