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Ninth Circuit: We Repeat, Climate Projections for the Year 2100 Okay to Support ESA Listing Decisions

On February 12, 2018, the Ninth Circuit upheld the National Marine Fisheries Service’s use of long-term climate projections to list the Arctic ringed seal (Phoca hispida hispida) as “threatened” under the Endangered Species Act, even though the seal population is currently healthy and abundant and there is no evidence of adverse impacts to the seals from climate change.

The State of Alaska and other regional and industry groups challenged NMFS’s 2012 listing as pure speculation, arguing that if NMFS can list a healthy and abundant species based solely on conjecture about possible status at the end of the century, then there are no rational limits to what species may be listed as threatened. These arguments prevailed in the Alaska district court, but the Ninth Circuit summarily reversed, explaining that it was bound by circuit court precedent laid out in the Ninth Circuit’s 2016 decision over the Beringia distinct population segment of the bearded seal.

When the bearded seal decision came out, the Ninth Circuit has held that NMFS may rely on climate modeling as the “best science available,” and the court will defer to the agency’s interpretation of complex scientific data when listing a currently healthy population. In the Arctic ringed seal case, opponents to the listing argued that the case was not about the best science available, but rather that NMFS’s decision lacked adequate analytical support and was overly speculative. Although opponents tried to argue that the 2016 bearded seal case was not controlling, the Ninth Circuit disagreed and, in its brief, 5-page unpublished opinion, cited the bearded seal case to dismiss each issue discussed.

This decision shows, once again, the power that comes with being the first actor — courts deferring to agencies when its conclusions are reasonable and supported by the record, and courts being bound by the precedent set in earlier cases. Indeed, the Ninth Circuit panel wrote here, “Though we may have reached a different conclusion, we are bound by our court’s precedent.” The Arctic ringed seal case also highlights how, although the wheels of justice move slowly, they surely move. The challenged NMFS listing decision occurred during President Obama’s first term in office, and the administrative record and litigation course had long been set before the arrival of the Trump Administration. Even though the current administration might not use climate projections to support the listing of currently healthy populations, the courts have clearly signaled that it is permissible to do so under the Endangered Species Act.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.