Endangered Species Law & Policy

In compliance with a settlement agreement previously blogged about here, the Fish and Wildlife Service published a final rule (PDF) effective October 28, 2010 listing the African Penguin as "endangered" under the Endangered Species Act.  Unlike its prior listing decision for five other species of penguins, in this instance, the Fish and Wildlife Service has determined that climate change contributes to the threats facing the species "through rising sea levels, increasing sea surface temperatures, declines in upwelling intensities, predicted increases in frequency and intensity of El Niño events in the Benguela marine ecosystem, and predicted increases in sulphide eruptions."

Because the species is not native to the United States, no critical habitat will be designated for the African Penguin.  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 African penguins.  This requirement is especially significant where, as here, the Service finds that climate change is contributing to a listed species' decline.  Because greenhouse gas (GHG) emissions anywhere may contribute to global climate change, it can be argued, for example, that the Environmental Protection Agency must consult with the Service when promulgating regulations under the Clean Air Act, or even when issuing individual Clean Air Act permits that may result in substantial increases in GHG emissions.

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.  Finally, listing results in the prohibition of the import or export of any of the species, or their parts or products, as well as their sale in interstate or foreign commerce.

Under the terms of the settlement agreement, the Service must issue a final rule regarding listing of a distinct population segment of the northern rockhopper penguin by January 28, 2011.  Notably, the Service previously determined that listing is not warranted for two species of penguin.  In a recent press release regarding the African penguin final rule, the Center for Biological Diversity states that "The Center and TIRN [the Turtle Island Restoration Network] plan to file suit against [the Department of the] Interior for denying listing to emperor and northern rockhopper penguins despite scientific evidence that they are jeopardized by climate change and commercial fisheries."