Endangered Species Law and Policy : Environmental and Natural Resources Attorneys from Nossaman

The U.S. Fish and Wildlife Service recently made a 90-day finding (PDF) that a petition to list the plant species Arctostaphylos franciscana presents substantial scientific or commercial information indicating that listing this species may be warranted.  Arctostaphylos franciscana is a low, spreading to ascending evergreen shrub in the heath family that is endemic to the San Francisco peninsula in California.  The species was presumed extinct since 1947 when it was last seen in the wild, but, in October 2009, an ecologist identified a plant growing in a concrete-bound median strip along Doyle Drive in the Presidio (a former army post located in San Francisco) as Arctostaphylos franciscana.

Soon after discovery of the individual specimen of the species in October 2009, the Wild Equity Institute, the Center for Biological Diversity, and the California Native Plant Society petitioned (PDF) for its listing as endangered on an emergency basis.  At the same time, they asked the Service to proceed to designate critical habitat for the species under the Act.

The Service is seeking input to inform its review on or before October 12, 2010.

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In compliance with a settlement agreement previously blogged about here, the Fish and Wildlife Service published a final rule on August 3, 2010 listing five species of penguins as "threatened" under the Endangered Species Act.  Specifically, the Service determined that the yellow-eyed, white-flippered, Fiordland crested, Humboldt, and erect-crested penguins are likely to become in danger of extinction within the foreseeable future.

None of the five species is native to the United States, and therefore no critical habitat is designated for the listed species.  Nevertheless, the listing triggers the requirement that federal agencies evaluate actions they take within the United States or on the high seas for their potential impacts on listed penguins.  The listing also enables the Secretary of the Interior to authorize financial assistance, personnel, and the training of personnel for management and conservation programs for the penguins.

Some contend that anthropogenic climate change is a major threat to the survival of the penguins.  While the Service acknowledged that the evidence of warming of the climate system is unequivocal, it concluded that the best available information does not indicate how increased sea level rise, ocean warming, or ocean acidification may affect the five penguin species.   Instead, the Service determined that other threats such as predation by introduced species, habitat loss, overfishing, unregulated ecotourism, and El Niño events were responsible for the population declines.

Under the terms of the settlement agreement, the Service must issue final rules regarding listing of the African penguin by September 30, 2010, and listing of a distinct population segment of the northern rockhopper penguin by January 28, 2011.

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In an article published in Yale Environment 360 on July 22, 2010, Todd Woody chronicles the ongoing campaign by various environmental organizations to use the Endangered Species Act to compel the U.S. Fish and Wildlife Service and National Marine Fisheries Service to regulate greenhouse gas (GHG) emissions.

The article, Enlisting Endangered Species As a Tool to Combat Warming, recounts the perils facing the American Pika, previously blogged about here,  to illustrate the broader strategy aimed at forcing the Services to regulate GHG emissions.

As noted in our blog post, Fish and Wildlife Service's to Review Prospect of Listing Whitebark Pine Due to Climate Change, the Service recently announced a 90-day finding that listing the whitebark pine as endangered or threatened due to climate change may be warranted.  In addition, the Fish and Wildlife Service may adopt rules listing several species of penguins due to climate change.  The National Marine Fisheries Service previously determined that a petition to list 83 species of coral due to climate change presented substantial information indicating that listing might be warranted for 82 of the species.  But the Fish and Wildlife Service declined to list the American pika as endangered or threatened due to climate change.

As Mr. Woody notes in his article, these listing decisions have been spurred by petitions and lawsuits filed by several environmental organizations with the aim of not only protecting the species from extinction, but utlimately requiring the Services to require emitters of GHG to reduce or mitigate their emissions.  But, so far, the utimate aim has been frustrated by resistance from both the Bush and Obama Administrations and doubts about the validity of the legal theory underlying the overarching strategy.

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The Fish and Wildlife Service announced a 90-day finding that listing the whitebark pine as endangered or threatened under the Endangered Species Act may be warranted.    The Natural Resources Defense Council (NRDC) previously petitioned the Service to list the whitebark pine in 2008.  It filed a lawsuit in March 2010 to force the Service to act on the listing petition.  In its petition, NRDC claimed that climate change posed one of the most significant threats to whitebark pine.  According to NRDC, whitebark pines are being threatened by several factors, which are exacerbated by climate change, including being attacked by mountain beetles that are now capable of moving to higher elevations due to rising temperatures.   

The Service's decision initiates a 60-day period for the public to provide information on the status of the species.  After the Service has conducted its status review, it will issue a 12-month finding on the petition, which will address whether listing is warranted.  The Service's 90-day finding does not necessarily mean that the Service's 12-month finding will result in a "warranted" conclusion because the 12-month finding is based on a more rigorous "best scientific and commercial data" standard. 

The Service's decision is one of several recent listing decisions involving climate change.  The Service may adopt rules listing several species of penguins due to climate change.  The National Marine Fisheries Service previously determined that a petition to list 83 species of coral due to climate change presented substantial information indicating that listing might be warranted for 82 of the species.  However, the Service declined to list the American pika as endangered or threatened due to climate change. 

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On June 3, 2010, a federal court approved a settlement that requires the Fish and Wildlife Service to take final action on proposed listings for six penguin species and one distinct population segment in the next few months.  In response to a 2006 petition to list 12 species of penguins, in 2007 the Service found that there was enough evidence to conduct a status review for 10 of the 12.  In 2008, the Service issued three proposed rules to list seven of the 10 as threatened or endangered due to climate change and commercial fishing, among other factors.  (See 73 Fed. Reg. 77,264, 73 Fed. Reg. 77,303, and 73 Fed. Reg. 77,332 (PDF).)

The Center for Biological Diversity (CBD) and Turtle Island Restoration Network (TIRN) sued to compel the Service to take final action on the proposed rules after it failed to take action within a year of the proposed rulemakings as required under the Endangered Species Act.  According to CBD, "[w]arming oceans, melting sea ice, and fishery harvests have wreaked havoc on penguins’ food supply: Krill, an essential nutrient for penguins, whales, and seals, has declined by up to 80 percent since the 1970s over large areas of the Southern Ocean." 

If the Service adopts the three proposed rules, the African, yellow-eyed, white-flippered, Fiordland crested, Humboldt, erect-crested, and a distinct population segment of the southern rockhopper penguins will receive protection under the Act.  Section 7(a) of the Act and  implementing regulations require federal agencies to evaluate their actions within the United States or on the high seas with respect to any species that is proposed or listed as endangered or threatened.

CBD and TIRN have threatened to bring suit to compel the Service to list the emperor and northern rockhopper penguins, which had been included in the 2006 listing petition.

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The Fish and Game Commission announced a change in its hearing date and location regarding listing the California tiger salamander as threatened under California's Endangered Species Act.  The hearing will now be a teleconference meeting held on Thursday, May 20, 2010 at 9:30 a.m. at the Commission Conference Room in Sacramento.  Locations where the public may participate are provided in the Commission's notice (PDF). 

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The Fish and Wildlife Service announced (PDF) that it is initiating a 12-month status review of a petition to list the Hermes copper butterfly (Hermelycaena [Lycaena] hermes) as a threatened or endangered species under the Endangered Species Act and to designate critical habitat.  Hermes copper butterflies are known to range from Fallbrook, California, in northern San Diego County to 18 miles south of Santo Tomas in Baja California, Mexico, and from Pine Valley in eastern San Diego County to Lopez Canyon in western San Diego County.  The species inhabits coastal sage scrub and southern mixed chaparral and is dependent on its larval host plant, Rhamnus crocea (spiny redberry), to complete its lifecycle.

The decision to review the butterfly is the result of a 90-day finding (PDF) by the Service indicating listing may be warranted.  Twice previously interested parties unsuccessfully petitioned to have the species listed, in 1991 and 2004.  Last year, the Center for Biological Diversity challenged the Service’s negative finding on the 2004 petition and, in October, reached a settlement agreement with the Obama administration whereby the Service agreed to review the petition again and to look at all new information about the butterfly and its habitat that has become available since the not substantial finding in 2006.

The Service is soliciting information about the butterfly and its habitat from interested parties for its 12-month status review.  Information must be received on or before July 6, 2010 and may be submitted to either:  Federal eRulemaking Portal: http://www.regulations.gov (search for docket FWS-R8-ES-2010-0031 and then follow the instructions for submitting comments); or by U.S. mail or hand-delivery addressed to Public Comments Processing, Attn: FWS-R8-ES-2010-0031; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

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Almost five years after receiving a listing petition, yesterday, the United States Fish & Wildlife Service finally issued its 90-day petition finding for the Mohave ground squirrel (Xerospermophilus mohavensis), finding that "listing may be warranted."  

The listing petition was jointly filed by the Defenders of Wildlife and Dr. Glenn R. Stewart on September 5, 2005.  Although the Endangered Species Act contemplates that the Fish & Wildlife Service will issue a 90-day petition finding within 90 days of receiving a petition, approximately six months after receiving the petition for the Mohave ground squirrel, the Service explained in a letter to petitioners that it would not be able to address the petition because 2006 listing funds had already been allocated.  Without further explanation, the Fish & Wildlife Service failed to act on the listing petition for the next three years. 

In 2010, however, the Fish & Wildlife Service finally addressed the petition, and determined that based on the information in the petition and the information in its files, "listing the Mohave ground squirrel may be warranted due to destruction, modification, or curtailment of the species' habitat or range."  In support of this conclusion, the Fish & Wildlife Service found that numerous activities were potentially impacting the Mohave ground squirrel's habitat, including urban and rural development on public and private lands, military activities at Fort Irwin, livestock grazing, and transportation activities. 

Petitioners had also asserted that because there is a positive correlation between rainfall and survival of the Mohave ground squirrel, decreased precipitation due to climate change was adversely affecting the ground squirrel's habitat.  The Fish & Wildlife Service did not find this assertion persuasive, however, explaining that while it agreed that there would be an overall decrease in precipitation due to climate change, it did not believe that current climate change models are "capable of making meaningful predictions of climate change for specific, local areas such as the range of the Mohave ground squirrel."    

Having found that listing of the Mohave ground squirrel may be warranted, the next step for the Fish & Wildlife Service is to make a 12-month finding on whether listing of the species is warranted.

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The Fish and Wildlife Service announced (PDF) today that it will accept comments through May 20, 2010 regarding a status review of the Sacramento splittail (Pogonichthy macrolepidotus), a fish endemic to lower-elevation waters of the Central Valley of California.  Based on the status review, the Service will issue a 12-month finding by September 30, 2010 that will address whether listing the species may be warranted under the Endangered Species Act (ESA).  If warranted, the Service will also publish, concurrently with the 12-month finding, a proposed rule to list the Sacramento splittail and a final determination on or before September 29, 2011.

The status review and 12-month finding are the result of a settlement agreement with the Center for Biological Diversity, which filed a complaint (PDF) in federal court against the Service in August 2009.  The complaint challenged the Service’s removal of the Sacramento splittail from the ESA threatened species list and alleged improper political influence by a former Department of the Interior official.  The Sacramento splittail had been listed as threatened in 1999, but the Service removed (PDF) it from the list in 2003 after an earlier court decision found the listing decision to be unlawful.

Interested parties may submit comments regarding the status review to the Service by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS–R8–ES–2010–0013 and then follow the instructions for submitting comments.
• U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS–R8–ES–2010–0013; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, VA 22203.

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The Fish and Wildlife Service announced that the delta smelt warrants uplisting (PDF) from "threatened" to endangered" under the Endangered Species Act.  However, uplisting at this time is precluded by the need to address higher priority species.  This "warranted but precluded" finding will not have any practical effect on existing protections for the delta smelt. 

According to the Service, the delta smelt is native to the Sacramento-San Joaquin Delta and subject to several threats, including predation, competition with invasive species, contaminants, and entrainment by water export facilities.  The Service stated that it "is still unable to determine with certainty which threats or combinations of threats are directly responsible for the decrease in delta smelt abundance." 

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The California Fish and Game Commission provided notice (PDF) that it will be holding a hearing in Stockton on Wednesday, May 5, 2010 at 8:30 am to take comments on the listing of the California tiger salamander to the list of threatened animals pursuant to the California Endangered Species Act.  The Department of Fish and Game submitted a status review (PDF) of the California Tiger Salamander to the Commission on January 11, 2010.

As detailed in the notice, written comments are requested to be submitted on or before April 30, 2010, but must be received no later than 5:00 p.m. on May 3, 2010.  All comments must be received no later than May 5, 2010 at the hearing in Stockton. 

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The National Marine Fisheries Service ("NMFS") has issued a final determination (PDF) listing the southern Distinct Population Segment of Pacific eulachon (commonly referred to as "pacific smelt") as a threatened species under the federal Endangered Species Act.  Because the pacific smelt has only been listed as a "threatened species," the listing does not result in an immediate prohibition on pacific smelt harvesting.  NMFS can, however, extend such a prohibition via regulation.  And in the final determination NMFS stated that in the future it will be making a critical habitat determination and considering the need for protective regulations.  As for the immediate future, the listing determination will require federal agencies to consult with NMFS on any federal action that may result in jeopardy to the pacific smelt.    

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Western Watersheds Project is again challenging the Fish and Wildlife Service's listing determination for the greater sage grouse.  On March 5, 2010, the Service determined that listing the greater sage grouse was warranted but precluded by higher priority species, thereby deeming the greater sage grouse a candidate species, which does not receive any protection under the Endangered Species Act ("ESA").  This determination was a reversal of the Bush Administration's 2005 determination that listing was not warranted for the species.  As discussed in a previous post, Western Watersheds filed a complaint challenging the 2005 determination, and in 2007, the federal district court reversed the Service's determination and remanded the matter to the Service. 

The supplemental complaint (PDF) filed by Western Watersheds alleges, in part, that the Service's justification for its warranted but precluded finding for the greater sage grouse is arbitrary and capricious because the Service has not made "expeditious progress" in listing species under the ESA.  According to the supplemental complaint, between 1974 and 2000, the Service listed approximately 45 species per year, but between January 2001 and March 2005, the Service listed only 30 species in total, an average of seven species per year.  The complaint also alleges that the Service only listed one species during fiscal year 2009. 

As previously discussed, while a candidate species is not protected under the ESA, the Bureau of Land Management ("BLM") has issued guidance (PDF) that may have impacts on wind and solar development as well as oil and gas leasing on BLM lands that impact the species.

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co-authored by Robert Thornton

After seeking a week's delay, the Fish and Wildlife Service has announced that the greater sage grouse warrants protection under the Endangered Species Act, but listing is currently precluded by higher priority species.  The Service is placing the greater sage grouse on the candidate list for future action.  Until then, the species would not receive any protection under the ESA. 

In its finding (PDF), the Service stated there are several factors contributing to the destruction or modification of the greater sage grouse's habitat, including the increasing degradation and fragmentation of sagebrush habitats due to conversion for agriculture, urbanization, infrastructure, grazing, and nonrenewable and renewable energy development.  If current trends persist, many local populations may disappear in the next several decades, with the remaining fragmented population vulnerable to extinction.  The Service plans "to continue to work cooperatively with private landowners to conserve the candidates species.  This includes financial and technical assistance, and the ability to develop conservation agreements that provide regulatory assurances to landowners who take actions to benefit the species." 

The Bureau of Land Management ("BLM"), which manages the majority of greater sage grouse habitat, has issued guidance (PDF) to address actions in "priority" sage grouse habitat.  For example:

• BLM will re-route proposed transmission projects to avoid priority habitat;
• For new oil shale lease applications, BLM may impose lease stipulations and project conditions of approval that designate avoidance areas;
• New right-of-way applications for wind and solar energy development may be denied or terms and conditions may be imposed on the right-of-way grant to protect priority habitat as supported by analysis under the National Environmental Policy Act. 

BLM has also issued a FAQ. 

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Another lawsuit (PDF) has been filed to force the Fish and Wildlife Service to act on a listing petition - this time for the whitebark pine tree, which is distributed across high-elevation areas in California, Oregon, Washington, Nevada, Wyoming, Montana, and Idaho, and southwestern Canada.  The Natural Resources Defense Council petitioned (PDF) the Service to list the whitebark pine in December 2008 claiming that climate change "poses one of the most significant threats to whitebark pine." 

The whitebark pine listing petition is one of several recent petitions seeking protection under the ESA due to the threat that climate change poses to the species.  The Service recently declined to list the American pika as endangered or threatened due to climate change.  But last month the National Marine Fisheries Service determined that a petition to list 83 species of coral due to climate change presented substantial information indicating that listing might be warranted for 82 of the species. 

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In a 3-2 vote, the California Fish and Game Commission ruled yesterday that the California tiger salamander will be protected as a threatened species under the State’s Endangered Species Act.  The Commission had previously denied the listing twice, and was ordered by the State Court of Appeals to reconsider the issue after the Center of Biological Diversity filed suit in 2004.  The Commission made the decision after finding that the species’ habitat, roughly 400,000 acres in Central California, is threatened by future development.

This decision is anticipated to affect landowners in the Central Valley including farmers and developers who will face additional restrictions on activities in areas that are occupied by or provide suitable habitat for the species. While opponents to the listing decision argue that the population counts for the species are inaccurate and projected development on rural land is exaggerated, Commission members respond that their decision is supported by the scientific community.

Three distinct population segments of the California tiger salamander were listed under the federal Endangered Species Act in 2000 (PDF), 2002 (PDF), and 2004 (PDF) by the Fish and Wildlife Service.  Its breeding and estivation habitat includes vernal pools, ponds, and upland areas in grassland and oak savannah plant communities.

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Reminiscent of the tale of endless litigation in Dickens' Bleak House, the Fish and Wildlife Service has reinstated (PDF) the 1993 proposed rule (PDF) to list the flat-tailed horned lizard as a threatened species under the Endangered Species Act following more than a decade of litigation, including two decisions from the United States Court of Appeals for the Ninth Circuit.  The flat-tailed horned lizard is found in the western Sonoran desert of California, Arizona and Mexico.

The reinstatement of the proposed rule is in response to Tuscon Herpetological Society v. Salazar (PDF), the Ninth Circuit's most recent decision respecting the listing determination.  In its decision, the Ninth Circuit reversed a lower court decision upholding the Service's determination to withdraw the proposed rule (for the second time) on the ground that habitat loss did not constitute a significant portion of the species' range and the loss did not result in a likelihood that the species could become endangered in the foreseeable future.  Noting that information concerning population dynamics of the species is limited and inconclusive, the Ninth Circuit faulted the Service for inferring that "the absence of evidence of population decline equates to evidence of persistence."  In a dissent, Judge Noonan questioned the role of the judiciary vis-a-vis the Service where, as here, everyone agrees that there is a high degree of uncertainty.

It's any body's guess whether the lizards are multiplying or declining. In a guessing contest one might defer to the government umpire. The court, however, finds the Secretary's  conclusion impacted by over-reliance on fragmenting evidence of the lizard's persistence; so the court decides to give the Secretary another crack at the problem.

The listing of the flat-tailed horned lizard will impose restrictions on public and private activities in the lizard's range in the United States, although the species is covered by the Coachella Valley Multiple Species Habitat Conservation Plan, which covers approximately 1.2 million acres of land in Riverside County, California.  Like the potential listing of the Sonoran desert tortoise, this listing could also impact areas identified for solar energy projects in California and Arizona.

The comment period on the proposed listing expires May 3, 2010.  Public hearings are scheduled for March 23, 2010 at the University of California, Riverside and March 24, 2010 at the Radisson Hotel in Yuma, Arizona.  The Service has not proposed the designation of critical habitat at this time.

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Environmental groups have sued (PDF) the Fish and Wildlife Service to force the listing of the Sonoran desert tortoise in Arizona as a distinct population segment under the Endangered Species Act.  The lawsuit is the latest legal development that threatens to slow or block the national effort to promote the development of solar energy on federal lands in the Arizona desert.  The listing of a related population of desert tortoise across the border in California has triggered significant limitations on solar projects in the Mojave Desert. 

On August 28, 2009, the Fish and Wildlife Service announced its finding (PDF) that the listing of the Sonoran desert tortoise may be warranted.  According to the lawsuit, the Service received a petition to list the tortoise in October 2008.  Under the ESA, the Service then had until October 2009 to make its 12-month finding that listing the tortoise as endangered or threatened is "warranted," "not warranted" or "warranted but precluded" by other listing actions of higher priority.  If listed, projects that harm the tortoise will be required to obtain incidental take authorization from the Service.  Listing will also trigger the requirement to designate critical habitat which will impose additional restrictions on solar energy development. 

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In a notice (PDF) published February 25, 2010, the U.S. Fish and Wildlife Service withdrew its proposal to list the Southwestern Washington/Columbia River Distinct Population Segment ("DPS") of coastal cutthroat trout for the second time.

The Service was required to revisit the issue after the United States Court of Appeals for the Ninth Circuit issued a decision (PDF) ordering the Service to reconsider whether the DPS of the coastal cutthroat trout warranted listing.  After considering the issue for a second time, however, the Service again determined that the listing of the DPS of the coastal cutthroat trout was not warranted. 

The Service first published a notice of withdrawal (PDF) of proposed listing for the DPS of the coastal cutthroat trout in 2002.  However, after a group of environmental organizations challenged the Service's determination in federal court, the Ninth Circuit found that the Service failed to properly consider whether the estuary and other marine areas constitute a significant portion of the range of the DPS, and therefore ordered the Service to reconsider the withdrawal determination. 

In the notice published late last week, the Service again withdrew the proposed rule to list the DPS of the coastal cutthroat trout, stating:

the threats to coastal cutthroat trout in the marine and estuarine areas of its range within the DPS, as analyzed under the five listing factors described in section 4(a)(1) of the Act, are not likely to endanger the species now or in the foreseeable future throughout this portion of its range. 

It is unclear whether this decision will once more be the subject of litigation.

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As discussed in Bloomberg Business Week, the oil and gas industry, ranchers and others are eagerly anticipating the Fish and Wildlife Service's decision whether to list the greater sage grouse.  In January 2005, the Service made a finding (PDF) that listing the greater sage grouse was not warranted.  The Western Watershed Project sued the Service in federal district in Idaho, and in December 2007, the court reversed (PDF) the Service's listing decision. 

In May 2009, Western Watershed Project and the Service then stipulated (PDF) that the Service would submit a new 12-month finding on the greater sage grouse by February 26, 2010.  Due to the death of the Service's Director, Sam Hamilton, the Service requested an extension (PDF) until March 5, 2010 to submit its new finding.  The finding to list the greater sage grouse could have implications for those in the oil and gas, wind energy and livestock industries, making their business more difficult across much of the West.

While half of the North American population of the greater sage grouse is believed to be in Wyoming, it also inhabits parts of California.  According to the California Department of Fish and Game, the sage grouse  "is a permanent resident in northeastern California, ranging from the Oregon border along the east side of the Cascade Range and Sierra Nevada to northern Inyo County.  Lassen and Mono counties have the most stable populations."

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The Center for Biological Diversity filed four lawsuits in federal district courts in Washington, D.C.,  Sacramento, California, Portland, Oregon, and Tucson, Arizona over petitions for species listings filed over the past decade.  The lawsuits against the Obama administration are aimed at forcing the Fish and Wildlife Service to make a finding on the listing petitions.

The Endangered Species Act requires the Service to make a "12-month finding" on listing petitions within one year of receipt.  The 12-month finding may consist of one of three determinations: 

1. listing is "warranted," and the Service must publish a proposed rule to list the species;
2. listing is "not warranted" and no further action is taken; or
3. listing is "warranted but precluded" by other listing actions of higher priority. 

However, the Service often takes more than a year to make a determination on a listing petition due to the number of petitions it receives, budget constraints, and litigation-imposed deadlines. A few of the species at issue in the lawsuits include the California golden trout, Cactus Ferruginous pygmy owl, Mount Charleston butterfly, Mojave fringe-toed lizard, and Mojave ground squirrel.

Arizona Complaint (PDF)

California Complaint (PDF)

Portland Complaint (PDF)

Washington, D.C. Complaint (PDF)

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On February 10, 2010, the National Marine Fisheries Service (NMFS) announced its determination that a Center for Biological Diversity (CBD) petition (PDF 6 MB) to list 83 species of stony coral as threatened or endangered under the Endangered Species Act “presents substantial information indicating that [listing] might be warranted for 82 of the 83 subject species.”  See 90-Day Finding (PDF).

If a “threatened” listing is warranted, NMFS may use its authority under Section 4(d) of the Endangered Species Act to impose regulatory requirements necessary and advisable to provide for the conservation of the species, including the prohibition of “take” of any such species without an incidental take permit. 

If any of the species are listed as “endangered,” they automatically benefit from the Act’s most potent protections: Under Section 7, federal agencies must insure that actions they fund, authorize, or carry out are not likely to jeopardize the species or result in the destruction or adverse modification of its designated critical habitat.  Under Section 9, persons are prohibited from “taking” or “harming” any endangered coral without first obtaining an incidental take statement under section 7 or an incidental take permit under Section 10.  Furthermore, citizens may bring suit in federal court to enforce the provisions of the Endangered Species Act.

Thus, listing of coral could enable environmental groups to sue major emitters of greenhouse gases (GHGs) under the theory that their emissions cause the unpermitted “take” of, or “harm” to species imperiled by climate change.

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Conservation groups hoped to make the American pika  the second mammal besides the Polar Bear, and the first in the lower 48 states, to be listed under the Endangered Species Act as threatened or endangered specifically due to climate change.  But the U.S. Fish and Wildlife Service (Service) determined that listing is not warranted at this time. See Notice (PDF).

The pika is extremely sensitive in increased ambient temperature (several hours above 78° F can be lethal).  But with the exception of certain lower elevation populations in the Great Basin, the Service determined that, within much of its range, the pika can adapt to the predicted 5.4° F increase by 2050 in average surface temperatures by retreating to cooler subsurface habitat during the warmest times of day, and by becoming more active at night and during the cooler early morning and evening hours.  Thus, the Service determined that the pika is neither endangered (i.e., in danger of extinction) nor threatened (i.e. likely to become endangered in the foreseeable future).

Shaye Wolf, a biologist with the Center for Biological Diversity, criticizes the finding as "a political decision that ignores the science and the law."

Listing of this tiny relative of the rabbit that primarily inhabits mountain ranges in the American West could have been a very big deal – and not just for industries and proposed actions located with the pika’s range.  If a species is listed as threatened or endangered specifically due to climate change, then any private industry or federal government action that may affect climate change – think any industry that emits greenhouse gasses (GHGs) and any private, state, or federal project that may increase GHG emissions – could be required to comply with the stringent regulatory requirements (and attendant litigation risks) of the Endangered Species Act because GHG emissions anywhere could impact threatened or endangered species everywhere. 

Thus, any refinery in the United States, e.g., could become subject to Endangered Species Act regulations protecting pika hundreds or thousands of miles away.  See Activists Propose Drastic Expansion of [Endangered] Species Act to Regulate Air Emissions (PDF).

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