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Environmental Law

: ESA Blawg

DOI climate change report on legal and policy issues includes noteworthy discussion of the ESA

By Keith Rizzardi

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In a recently announced Department of Interior document, the Report of the Subcommittee on Law and Policy: An Analysis of Climate Change Impacts and Options Relevant to Legal and Policy Issues at the Department of the Interior, the Federal government discusses the potential implications of global climate change for Endangered Species Act implementation, summarizing the possible issues as follows (see pp. 7, 29):

Over time, the effects of climate change may have a tendency to move existing plant and animal species farther north and to higher elevations to maintain the moisture and temperature resources they need. When, where, and to what extent that will occur will be difficult to predict. This ecosystem movement may ultimately shift species outside of their existing range and the currently designated critical habitat over the next few decades. This section on species movement deals with those circumstances where the species can successfully pursue that mix or resources. The next section addresses the concern that some species may not be able to survive the changing conditions.

Federal agencies have an affirmative obligation to manage their lands to protect and recover endangered species. These species may be stressed or migrate in response to increased climate change effects. Options include: (i) seeking a Solicitor's opinion concerning the legal meaning of the term "foreseeable future" as used under the ESA, to provide some guidance on the standard for relying on forward-looking models instead of historic data to make decisions; (ii) seek a Solicitor's opinion concerning the options available in designating critical habitat; (iii) exercising greater use of the ESA's authority to introduce experimental populations outside of a species historic range; (iv) streamlining the HCP process; and (v) increasing participation in voluntary species conservation through conservation easements, no-surprises, safe harbor agreements, no-take agreements, financial incentives, and recovery incentives.

KEITHINKING: It is remarkable that the Department of Interior can so openly acknowledge the potentially enormous implications of global climate change for endangered species, while simultaneously adopting new ESA Section 7 consultation regulations that clearly limit the review and consideration of those very implications when managing endangered species.

Full post as published by ESA Blawg on December 11, 2008 (boomark / email).