The Threat of Climate Change under the Endangered Species Act

Last month the U.S. Fish and Wildlife Service (“FWS”) proposed to list the polar bear (Ursus maritimus) as a threatened species under the Endangered Species Act (“ESA”). The primary reason for listing the polar bear was the affect of climate change on sea ice habitat in the Arctic. In short, the FWS concluded that the diminishing extent of sea ice in the Arctic was adversely affecting polar bear habitat, resulting in difficulty hunting, increased difficulty breeding and increased movement to obtain food.

Despite the variability of climate change, the FWS found that the eventual effect of the change on sea ice habitat would be a decline in polar bear populations. In making this finding, the FWS noted that populations would be affected differently in the rate, timing, and magnitude of impact, but within the foreseeable future, the species was likely to become endangered throughout all or a significant portion of its range due to changes in habitat.

Critical to this finding was the FWS’ definition of “foreseeable future.” The FWS chose to define “foreseeable future” as 45 years, which was the projected three generation timespan for the polar bear. So, within 45 years, the FWS concluded that sea ice recession was likely to cause the polar bear to become endangered.

The likely consequence of this decision, under the ESA, is that the FWS has set the precedent that it views climate change as a threat that is likely to impact species within the foreseeable future. This represents a crucial change in thinking at the FWS that will undoubtedly change the FWS’ decisions to list and delist endangered and threatened species.

Just over a decade ago, when delisting the McKittrick Pennyroyal (Hedeoma apiculatum) from the List of Endangered and Threatened Plants, the FWS recognized that drying trends resulting from climate change posed a serious threat to the species. However, the FWS determined that the rate of climate change was sufficiently slow and uncertain that the threat posed by climate change was not expected to occur in the foreseeable future.

It now appears that the threat of climate change, effectuated through sea ice recession or drying trends or other mechanisms, is one that will be considered by the FWS as occurring within the foreseeable future. This may result in an increased effort to list species, such as the polar bear, that exist in habitats susceptible to warming trends. And, species that are already listed as endangered or threatened that exist in such habitats are less likely to be down-listed or delisted.

Already, environmental groups have sued the federal government for not doing enough to protect polar bears and other Arctic species such as the walrus against the threat of global warming. In Alaska, regulations promulgated by the FWS for the oil and gas industry for “incidental take” of polar bears and walrus under the ESA are being challenged based on the claim that the FWS did not assess the added stress of warming in the Arctic before issuing the regulations.

If the polar bear is listed as a threatened species more litigation is expected to follow, as opponents of energy projects will likely attempt to use the listing to stop project development. Some environmental groups are advocating using the listing to stop coal and oil developments throughout the U.S. because of the contribution of such projects to climate change, which in turn affects polar bear habitat. As a result, the threat of global climate change under the ESA may be far-reaching and have legal consequences for a host of industries that contribute to climate change.

(Contributed by Andy Irvine, Environmental Compliance Attorney in the Denver Office)