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Environmental Law

: ESA Blawg

Climate Change and ESA in new law review article

By Keith Rizzardi

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In the February 2008 issue of Boston University Law Review, Professor J.B. Ruhl at Florida State University published yet another article on the Endangered Species Act, CLIMATE CHANGE AND THE ENDANGERED SPECIES ACT: BUILDING BRIDGES TO THE NO-ANALOG FUTURE. The abtract reveals the significance of the paper, raising a theme often found here on ESAblawg as well.

This Article examines the challenges global climate change presents for the Endangered Species Act (ESA) and its primary administrative agency, the U.S. Fish and Wildlife Service (FWS). Climate change will reshuffle ecological systems in ways that will defy prediction using existing knowledge and models, posing threats to species through primary and secondary ecological effects and the effects of human adaptation to climate change. Even assuming globalwide regulation of greenhouse gas emissions eventually yields a more stable climate variation regime, it will differ from the recent historical regime and many species will not survive the transition regardless of human interventions using the ESA. Yet many other species can survive with the assistance offered through a focused application of the ESA. This Article proposes a policy approach aimed toward that objective. It begins by introducing the climate change challenge facing the FWS and explains why, after the Supreme Court’s decision in Massachusetts v. EPA, the agency must develop a response. Part I examines the likely ecological consequences of climate change, for which we have no analog, and develops a typology of threats species will experience. Part II explores the pressures climate change will place on the FWS’s policy decisions as an escalating number of species faces increasingly more serious imperilment as a result of climate change. Part III methodically probes the relevant provisions of the ESA to identify the range of policy discretion the FWS has in making those decisions. Part IV then lays out a plan for the FWS to use the ESA to build bridges for climate-threatened species across the climate change transition and into the no-analog future. Most significantly, I propose that the ESA should not be used to regulate greenhouse gas emissions, but rather that it should be focused on establishing protective measures for species that have a chance of surviving the climate change transition and establishing a viable population in the future climate regime. In particular, the ESA can help ensure that human adaptation to climate change does not prevent other species from adapting as well.

OTHER RESOURCES

In a recent ESAblawg "Google tool," I noticed that the news was full of news on climate change and its implications for endangered species:

NOAA discussing the effects of changing Pacific Ocean conditions on salmonidspecies.
A Center for Biological Diversity lawsuit to compel the government to list the ribbon seal, threatened by melting icepacks in Alaska
The free-market focused Heartlead Institute's article citing evidence of increasing polar bears populations and cooling summer polar temperatures.

Full post as published by ESA Blawg on March 21, 2008 (boomark / email).