Environmental, Natural Resources, & Energy Law Blog

Sami Godlove, MSL

 

Introduction

 

The Endangered Species Act (ESA) celebrates its 50^th anniversary this year. For the last 50 years, the ESA has been our nation’s hallmark law for wildlife conservation, and it still is to this day. The data shows that the ESA has been an overwhelming success in preventing listed species from going extinct; in fact, only one percent of all listed species in the history of the ESA have gone extinct.[1] Further, the Center for Biological Diversity found that 90% of the 110 listed species it studied were recovering at a rate equal to, or faster than, the rate their recovery plans specified.[2] Despite these successes, we are in the midst of a global biodiversity and extinction crisis that some have labeled the sixth mass extinction. In the U.S., one-third of species are vulnerable to extinction and one in five species are at a “high risk” of extinction.[3] Today, climate change is one of, if not the most, significant contributors to species extinction and biodiversity loss globally. A 2019 study found that 99.8% of species listed as “endangered” under the ESA are sensitive to climate change.[4] The impacts of climate change are only expected to push more and more species to the brink of extinction over the coming decades.

 

How do we ensure our greatest species protection law adequately addresses the greatest species protection threat? This paper attempts to answer this question by proposing three regulatory and legislative changes to the ESA: (1) defining the term “foreseeable future” to include long-term climate-related threats, (2) providing interim protections for any species that does not receive a determination within the 12-month deadline, and (3) designating likely future critical habitat for listed species. This paper begins with an overview of the listing and critical habitat designation process and then analyzes how each proposed change would help protect species from climate change impacts. It concludes by discussing what the next 50 years of the ESA could look like if we get serious about protecting species from climate change, or—what happens if we don’t.

 

Listing Process and Critical Habitat Designation

 

The ESA defines an “endangered species” as a species that is “in danger of extinction throughout all or a significant portion of its range”[5] and a “threatened species” as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”[6] The U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS)—the “Services”—are the agencies charged with implementing the ESA (the USFWS oversees terrestrial species and NMFS oversees marine species) and are required to list threatened or endangered species based on any one of five statutory factors, including the fifth factor: “other natural or manmade factors affecting [the species’] continued existence.”[7] This last factor is where climate change, as a “manmade” factor, fits in.

 

The listing process begins with either of the Services proposing to list a species or responding to a petition requesting a species be listed. Most listings begin with a petition from third parties. The Services then have 90 days—to the maximum extent practicable—to publish a decision on whether to accept or deny the petition.[8] If the petition is accepted, the Services must determine whether the listing is “warranted” or “not warranted” within 12 months of receiving the petition.[9] A “warranted” finding results in a proposed rule. This proposed rule then goes through notice and comment and the Services are required to publish a final rule on the decision within 12 months of the published proposed rule.[10] Thus, the ESA mandates that a threatened or endangered species be listed within two years of a petition.

 

When a species is listed under the ESA, the relevant Service is required to also list any “critical habitat” for that species. Critical habitat is defined as “specific areas within the geographical area occupied by the species at the time it is listed” that contain “physical or biological features” that are “(I) essential to the conservation of the species and (II) which may require special management considerations or protection.”[11] Critical habitat can also be designated for “specific areas outside the geographical area occupied by the species at the time it is listed…upon a determination by the Secretary that such areas are essential for the conservation of the species.”[12]

 

The Foreseeable Future

 

To protect at-risk species from climate change, the Services must define the “foreseeable future” to include long-term climate threats. This term is not defined in the statute, but recent Courts of Appeals decisions have upheld the use of long-term climate predictions to define the “foreseeable future” and have upheld listings based on climate change effects on those species and their habitat.[13] While there is nothing in the ESA that expressly requires the Services to consider climate change in listing decisions, these appellate court decisions and the last listing factor under Section 4(a)(1)—which includes “natural or manmade factors”—suggests that climate change effects should be accounted for.

 

In response to the Ninth Circuit and D.C. Circuit decisions upholding the use of long-term climate projections in listing decisions, the Services under the Trump administration finalized new regulations in 2019 that defined the “foreseeable future” to extend “only so far into the future as the Services can reasonably determine that the conditions potentially posing a danger of extinction in the foreseeable future are probable.”[14] One (intended) consequence of this rule is that it limits the timeframe of the “foreseeable future” by allowing the Services to disregard longer-term threats to species such as climate change impacts.[15] Thus, species are less likely to be listed as “threatened” if climate change is the main threat to their existence.

 

One relatively easy and quick solution is for the Services under the Biden Administration to repeal the 2019 rule and issue new regulations that define the “foreseeable future” to include long-term climate threats and impacts. This would allow species that may not yet be threatened or endangered, but that are likely to be significantly impacted by climate change (think species that depend on habitats such as sea ice, snow, temperature-specific habitats, coastlines, etc.), to be listed and protected as threatened before their habitats are lost. By the time their current habitat is already degraded or lost due to climate change, it is likely too late.

 

 

 

 

Protections for unlisted—but warranted—species

 

While the ESA has been successful in conserving and recovering species that are listed, it does nothing for those that are not, including those that meet the statutory criteria for listing but have not actually been listed. The ESA should provide interim protections for these species. A 2016 study found that, on average, it takes over 12 years for a species to be listed, even though the statute specifies a two-year listing timeframe.[16] This is largely due to budget and funding constraints, and a clear preference for vertebrate species (it took some plant species 38 years to get listed!).[17] Nonetheless, this shows that the Services frequently miss the listing deadlines.

 

Even if the Services make a “warranted” finding for a species, that species may still be denied listing protections under Section 4 (b)(3)(B)(iii).[18] These species land on the candidate (or “warranted but precluded”) list because, even though they meet the statutory criteria for listing, they are precluded from listing due to other higher-priority listing actions. In the meantime, these species have zero protections under the ESA until a final decision is made.

 

To ensure species that warrant protections are provided those protections in a timely manner, Section 4(b)(3) should be amended to provide species that do not receive a finding within the 12-month required timeframe with interim protections until a final determination is made. These species will essentially have “threatened” status until the relevant Service either issues a rule or finds that listing is not warranted. Any species that is “warranted but precluded” should also be provided these protections.

 

We can look to Wilderness and Wilderness Study Area designation as a model for this. Under the Federal Land Policy and Management Act, Congress directed the Bureau of Land Management to identify and manage Wilderness Study Areas (WSAs).[19] WSAs are lands that meet the criteria for Wilderness, but are not yet designated as Wilderness, and are managed “to ensure its suitability for designation as wilderness is not impaired.”[20] This policy puts the precautionary principle, which errs on the side of caution, to practice and can be used as a model for the ESA to prevent species from going extinct while they await further listing consideration.

 

Designating Future Critical Habitat

 

In addition to designating current critical habitat for listed species, the Services should designate potential future critical habitat that is likely to become habitat for a species as climate change alters ecosystems and forces species to migrate. What is the good in designating critical habitat if that habitat is expected to move or be gone in the coming decades? The statutory language expressly allows this type of designation as well. Under the ESA, critical habitat can be designated for areas “outside the geographical area occupied by the species” if those areas are “essential for the conservation of the species.”[21] The Services should use this statutory authority to issue a rule that would allow critical habitat designation for areas that species are likely to migrate to in the future.

 

Recent case law can give the Services guidance on how to write this rule. In Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, the Supreme Court held that “critical habitat” must also be “habitat” for the species, and the Services cannot designate an area as critical habitat if it is not also “habitat” for the species.[22] While this holding does not necessarily restrict the Services from designating future critical habitat, it does seem to limit the potential scope of critical habitat to some degree. On the other hand, the Ninth Circuit upheld a Fish and Wildlife designation of polar bear habitat that included potential habitat based on long-term climate projections and the expected loss of current polar bear habitat.[23] Following the Ninth Circuit’s analysis, the Services would have the authority to write such a rule.

 

The Next 50 Years

 

The first half-century of the ESA has told a resounding success story, but what will the next 50 years hold? The next 100? That will largely depend on how the Services and Congress address the impacts of climate change on biodiversity loss and species extinction. According to the International Union for Conservation of Nature (IUCN), climate change is currently impacting almost 11,000 species on the IUCN Red List (as of 2019).[24] The worst climate effects are yet to come, and this number of impacted species can only be expected to grow. In perhaps the most famous ESA case, the Supreme Court in TVA v. Hill concluded that the explicit Congressional intent in enacting the ESA was to “halt and reverse the trend towards species extinction, whatever the cost.”[25] Fifty years later, science tells us that the trend towards extinction is only accelerating; what are we willing to do to stop it? Making these changes will be a step in the right direction.