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

In a closely watched and hotly contested challenge to the U.S. Fish and Wildlife Service's decision to list the Polar Bear as a threatened species under the Endangered Species Act (ESA) in the final listing rule at 73 Fed. Reg. 28,212 (May 15, 2008) (pdf), the U.S. District Court for the District of Columbia issued a 116-page opinion (pdf) in which it upheld both the decision to list the bear as threatened, not endangered, and the Service's interpretation of "endangered species" as a species that is "on the brink of extinction."

As previously reported here, the Center for Biological Diversity (CBD) argued that "on the brink of extinction" or "in imminent danger of extinction" sets the bar for an endangered listing higher than the language, purpose, and legislative history of the ESA allows.  According to CBD, the Service should have determined that the polar bear is endangered because the best available science shows that the bear meets the "in-danger-of-extinction" standard in the ESA.  But the court held that "the Service's definition of an endangered species, as applied to the polar bear, represents a permissible construction of the ESA and must be upheld . . ." under the deferential standard articulated by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

In addition, the court held that "[a]lthough the evidence emphasized by CBD is very troubling, the Court finds that the agency acted well within its discretion to weigh the available facts and scientific information before it in reaching its conclusion that the polar bear was not endangered at the time of listing."  In a footnote, the court further explained that "where global warming has been identified as the primary threat to the polar bear's sea ice habitat and the agency has acknowledged that the global warming trend is unlikely to reverse itself, a conclusion that the species is, in some sense, "in danger of extinction" has undeniable appeal.  The [United States Geological Service] population models, which predict a trend of extinction across three of the four polar bear ecoregions in as little as 75 years, particularly give the court pause."

Nevertheless, the court emphasized that under controlling Supreme Court precedent, "this Court is bound to uphold the agency's determination that the polar bear is a threatened species as long as it is reasonable, regardless of whether there may be other reasonable, or even more reasonable views."  Indeed, "[t]hat is particularly true where, as here, the agency is operating at the frontiers of science."  Thus, the court concluded that "[w]hile CBD would have weighed the facts differently, the Court is persuaded that FWS carefully considered all of the available scientific information before it, and its reasoned judgment is entitled to deference."

Notably, the court also rejected the claim, advanced by a host of other plaintiffs, that the polar bear should not have been listed at all.  Among other things, opponents of the listing decision argued that the science of climate change is too uncertain, and that the Service (1) failed to show that the polar bear is sufficiently likely to become endangered in the foreseeable future, (2) failed to rely on the best available science, (3) failed to take into account foreign conservation efforts, and (3) failed to follow proper rulemaking procedures.

Although the court limited its deference to the Service's interpretation of "endangered species" as applied to the polar bear, and not as a regulatory interpretation that may apply in any listing decision, this aspect of the opinion is significant because the Service is likely to apply the same "on the brink of extinction" standard in other listing decisions, which could result in fewer species qualifying for full protection under the ESA.

While the court's ruling disposes of several cross-motions for summary judgment, it has yet to reach a related challenge to the special 4(d) Rule that the Service issued after listing the polar bear as threatened.  See Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, No. 1:08-mc-00764-EGS (D.D.C. filed Dec. 4, 2008).  As previously reported here, environmentalists had hoped that listing the polar bear as threatened due to the impacts of climate change would force the federal government to use its considerable regulatory authority under the ESA to impose strict limits on emissions of greenhouse gases (GHGs).  But a controversial rule issued by the Department of the Interior under section 4(d) of the ESA placed strict geographic limits on the authority of federal agencies to require projects in Alaska to curb or mitigate their GHG emissions.  As previously reported here, much to the dismay of environmentalists, the Department of the Interior under the Obama Administration chose not to overturn the polar bear rule.  Instead, the Obama Administration has called for new legislation to address GHG emissions, and EPA may assert its authority under the Clean Air Act to regulate GHGs.

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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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The regulatory requirements of the Endangered Species Act ("ESA") are imposing limitations on the development of renewable energy projects in the California desert. State and federal regulatory agencies are attempting to expedite ESA and other environmental reviews of proposed renewable energy projects. But the jury is out on whether these efforts will succeed. The ability of California to implement its precedent-setting climate change legislation hangs in the balance. As Governor Schwarzenegger stated "If we cannot put solar power in the Mojave Desert, I don't know where the hell we can put them."

Click here for the ESA and Renewable Energy Power Point presentation that was given at the April 8-9 ESA conference

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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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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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