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  • 06
  • December
  • 2016

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85-Year Climate Forecasts Prompt Species Listing Under the Endangered Species Act

In late October, the Ninth Circuit Court of Appeals upheld the National Marine Fisheries Service’s (NOAA Fisheries) decision to list the Beringia distinct population segment (DPS) of the Bearded Seal as threatened under the Endangered Species Act (ESA).1 This listing decision was controversial because the Beringia DPS is not facing any imminent or serious threat or reduction to its population. Indeed, NOAA Fisheries acknowledged that the Beringia DPS currently has a large, widely distributed, and genetically diverse population. Nevertheless, NOAA Fisheries concluded that the Beringia DPS was threatened, based primarily on climate change models that predict the loss of sea ice by the year 2095 in ways that would likely affect the seal’s significant life functions and endanger the seal. This is the first time NOAA Fisheries has looked so far into the future to form a basis to list a species as threatened that is currently faring well.

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When deciding whether to list a species as threatened, the agency must look into the “foreseeable future” to determine if the species will become endangered throughout all or a significant portion of its range.2 Prior to the Beringia DPS listing decision, NOAA Fisheries had more generally been using 2050 as the outer boundary of the “foreseeable future.” In 2009, however, the Department of the Interior issued a memorandum to the U.S. Fish and Wildlife Service3 (FWS) shifting course, explaining that the foreseeable future should vary for different species according to the best data available for the species and its specific threats. In its listing decision for the Beringia DPS, NOAA Fisheries acknowledged this new interpretation and adopted a foreseeability analysis that included climate projections extending beyond 2050 all the way to the end of the 21st Century, using a selection of models from the Intergovernmental Panel on Climate Change (IPCC). Numerous groups opposed NOAA Fisheries’ use of climate models in this way to justify listing a healthy and abundant species as threatened. In response to NOAA Fisheries’ proposed listing for the Beringia DPS, some commenters noted that - using this rationale - virtually every species could similarly be considered threatened.

When NOAA Fisheries finalized its listing decision, the State of Alaska, the North Slope Borough, and the Alaska Oil and Gas Association sued, claiming that NOAA Fisheries was arbitrary and capricious in relying on speculative forecasting to find a plentiful population of seals to be threatened.5 Plaintiffs argued that the speculative forecasting was NOAA Fisheries’ use of a host of IPCC models for the years 2050 to 2100, each with slightly different assumptions, to reach the conclusion that sea ice crucial to the Beringia DPS’s viability would have disappeared during the seal’s mating, birthing and nursing season. The U.S. District Court for the District of Alaska agreed and struck down NOAA Fisheries’ determination, but the Ninth Circuit reversed, reiterating that IPCC modeling constitutes the “best available science” and deferring to the agency’s interpretation of complex scientific data.6

The Ninth Circuit’s decision here is another in a growing trend of cases where courts defer to the agencies’ use of climate change projections to support ESA listing decisions, or urge the agencies to use these projections in their analysis. These include the FWS decision to list the polar bear as threatened (which the D.C. Circuit upheld in 20137), the FWS decision to designate certain polar bear critical habitat (which the Ninth Circuit upheld in February 20168), and a remand of the FWS decision to withdraw its proposed rule to list the wolverine (which the U.S. District Court for the District of Montana issued in April 2016 to force the FWS to consider changes in projected snow cover from climate change9).

NOAA Fisheries and FWS are likely to continue to use climate change models to aid in their listing determinations, and courts are likely to continue to defer to the agencies on complex scientific matters. Virtually every species could be considered threatened by climate change if the agencies looked far enough into the future using the current models, but the “foreseeable future” time frames will differ for each species. These climate change factors and longer planning horizons are likely to continue to play a significant role in listing decisions for Arctic, winter and perhaps some coastal species.

1 Alaska Oil and Gas Ass’n v. Pritzker, 840 F.3d 671 (9th Cir. 2016).

2 16 U.S.C. § 1532(20).

3 NOAA Fisheries and FWS share responsibility for implementing the ESA. NOAA Fisheries manages marine and anadromous species, and FWS manages land and freshwater species.

4 See NOAA Fisheries, Threatened Status for the Beringia and Okhotsk Distinct Population Segments of the Erignathus barbatus nauticus Subspecies of the Bearded Seal, Final Rule, 77 Fed. Reg. 76740, 76758 (Dec. 28, 2012).

5Alaska Oil & Gas Ass’n v. Pritzker, No. 4:13–cv–18–RRB, 2014 WL 3726121 (D. Alaska July 25, 2014).

6 Alaska Oil and Gas Ass’n v. Pritzker, 840 F.3d 671, 679 (9th Cir. 2016).

7 In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation--MDL No. 1993, 709 F.3d 1 (D.C. Cir. 2013).

8 Alaska Oil and Gas Ass’n v. Jewell, 815 F.3d 544 (9th Cir. 2016).

9 Defenders of Wildlife v. Jewell, 176 F. Supp. 3d 975 (D. Mont. 2016).

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Brandon M. Tuck

Brandon M. Tuck Senior Associate