Can the Endangered Species Act Adapt to Climate Change?
If threatened species are going to survive climate change, so must the Endangered Species Act.
Polar bear. Image: Andy Brunner
Species threatened by climate change may now be protected under the Endangered Species Act (ESA), according to a three-judge panel of the second largest court in the country.
The Monday ruling at the US 9th Circuit Court of Appeals allowed a Pacific bearded seal subspecies to be listed as "threatened" based on climate projections through the end of the century—the first time this has ever happened.
Oil lobbyists and indigenous groups in Alaska had recently appealed the seal's listing, whose fate is tied to that of Arctic sea ice. The plaintiffs alleged the National Marine Fisheries Service failed to use the "best scientific and commercial data available" in its determination.
"The court case provided a good illustration of the importance of needing to make decisions based on the information that's available to us," Jon Kurland, assistant regional administrator of the National Oceanic and Atmospheric Administration's (NOAA) Alaska Protected Resources Division told me. "The alternative would be that we wouldn't make decisions for these species and protect them."
In 2014, NOAA used models from the Intergovernmental Panel on Climate Change to conclude that "a significant decrease in sea ice is probable later this century and that these changes will likely cause these seal populations to decline." Winter sea ice is expected to decline by 40 percent before 2050. Summer sea ice throughout the Arctic will likely disappear in the next 20 years.
Long before the ESA was passed in 1973, Americans were already trying to save species. The evidence is abundant throughout our National Wildlife Refuge System, and in sweeping articles of legislation, such as the Migratory Bird Treaty Act of 1918.
Now, as we wade deeper into the Anthropocene, the era of humans, many conservationists are hoping laws like the ESA can adapt to wildlife's newest threat: climate change.
In recent years, it's become more common for wildlife officials to consider the harm that global warming might have on a species and its habitat. But sometimes their assessments must rely on climate models to predict how a species will adapt, and how we should be planning for its recovery.
For example, scientists with the US Fish and Wildlife Service (USFWS) argued that wolverines, a snow-dependent mammal in the weasel family, deserved to be listed as rising temperatures would hurt their ability to den in the snowpack. In 2014, however, the USFWS rejected the recommendations of its scientists, and decided not to protect the species. Many suspected that political pressure from eastern states over perceived threats to private property rights influenced the agency's decision.
"So now you can say, 'We have this species' habitat here, and we think that climate change would remove the habitat north to a higher elevation, and therefore we not only have to protect this habitat, but we have to protect this future habitat.' Which is based entirely on speculation," said Myron Ebell, director of the Competitive Enterprise Institute's Center for Energy and Environment, who challenged the listing.
In April of this year, US District Judge Dana Christensen ordered the agency to reconsider the wolverine's listing, remarking that "no greater level of certainty is needed to see the writing on the wall."
Cases like this have been an annoyance to environmentalists, as opponents often argue the ESA was never intended to be used over speculative climate threats. But what dissidents might not realize is that predictive models already inform conservation decisions. NOAA, for instance, uses ecosystem modeling to foresee how shark fishing will impact entire marine communities.
"It's not unusual for us to look at models in a number of our listing decisions. Climate related listings are only one type of example," Angela Somma, who leads NOAA's Endangered Species Division, told me.
Conservation groups like the Center for Biological Diversity called Monday's decision "a huge victory" for Pacific bearded seals. Since the ruling sets a new precedent for endangered species listings, it's possible that other climate-threatened wildlife, such as the American pika or the Pacific salmon, could see future protection under the ESA.
In the US, more than half of all bird species are currently at risk due to climate change. According to the International Union for Conservation of Nature, global warming now threatens more than 1,400 endangered species worldwide. This year, the Bramble Cay melomys, an Australian rodent endemic to the Great Barrier Reef, was the first mammal driven to extinction by man-made climate change.
"This issue is going to continue to arise," Kurland said.
"We're not trying to predict the future, but we're going with a conservative assumption in the absence of any indication that greenhouse gas emissions are going to change. We have to assume that something more like the status quo approach will continue."