9th Circuit: ESA permits consideration of future climate change impacts in listing decisions

bearded Seal, Erignathus barbatus, , NOAA
Ice is vital to the survival of bearded seals in the Arctic. Image courtesy NOAA.

A federal appeals court ruled Oct. 24 that federal wildlife officials can consider future climate change impacts when deciding whether to grant Endangered Species Act protections.

The decision by the U.S. Court of Appeals for the Ninth Circuit in Alaska Oil & Gas Association v. Pritzker came in a dispute over the Obama administration’s move to add a population of Pacific bearded seals in Alaska to the list of threatened and endangered species.

“This is a huge victory for bearded seals and shows the vital importance of the Endangered Species Act in protecting species threatened by climate change,” Kristen Monsell, a staff attorney at the Center for Biological Diversity who argued the case, said in a statement.

The bearded seal (Erignathus barbatus)  is a pinniped that is native to both the Arctic and North Atlantic oceans. The Pacific bearded seal (E.b. nauticus), a subspecies, is found in marine environments around the Arctic region.

E.b. nauticus is not a deep water species. Instead, as explained by the Alaska Department of Fish & Game, “[t]he distribution of bearded seals appears to be strongly associated with shallow water and high biomass of the benthic prey they feed on. They are limited to feeding depths of less than 150–200m.”

The Pacific bearded seal uses ice floes as a platform for mating, birthing, and nursing of their pups and the subspecies is an important food source for polar bears, killer whales, and Pacific walrus.

bearded-seal-range-map-courtesy-noaa
This map shows the range of the bearded seal. Graphic courtesy NOAA.

In 2008 the Center for Biological Diversity asked the National Oceanic & Atmospheric Administration, an agency of the U.S. Department of Commerce that is responsible for marine mammal conservation, to list two distinct population segments of E.b. nauticus – one native to the Sea of Okhotsk, another native to the Bering and Chukchi Seas – and two other seal species native to Alaskan waters as threatened under the ESA.

NOAA finalized the listing in December 2012, explaining its decision as a necessary response to ongoing human alteration of the planet’s climate:

“The main concern about the conservation status of bearded seals stems from the likelihood that their sea ice habitat has been modified by the warming climate and, more so, that the scientific consensus projections are for continued and perhaps accelerated warming in the foreseeable future. A second concern, related by the common driver of carbon dioxide (CO2) emissions, is the modification of habitat by ocean acidification, which may alter prey populations and other important aspects of the marine ecosystem.”

Before finalizing the listings, NOAA commissioned a report to examine the conservation status of Pacific bearded seals. Published in 2010, that report used data from the Fourth Assessment Report of the Intergovernmental Panel on Climate Change to conclude that E.b. nauticus would experience enough loss of its favored shallow water ice floe habitat during the species’ mating, birthing, and nursing seasons to be at risk of extinction by the latter part of this century.

The state of Alaska, an oil and gas industry association, and a native Alaskan government sued the Obama administration in federal court in Anchorage in an effort to overturn the listing of both E.b. nauticus populations. Their challenge to the Okhotsk DPS failed because U.S. district judge Ralph R. Beistline held that the plaintiffs lacked standing. That ruling was not challenged on appeal.

As for the Beringia DPS, the plaintiffs main line of legal attack was that the listing was not based on the “best scientific and commercial data available,” as required by 16 U.S.C. § 1533(b)(1)(A). They supported that claim with assertions that there is, at present, a fairly high number of individuals in that population, the size of the population at which extinction would become a realistic threat is not known, that use of climate models to project sea ice conditions past 2050 is not permitted by the ESA, and that NOAA had not shown a connection between seasonal sea ice loss and the continuing viability of the Beringia DPS of E.b. nauticus. The industry-led coalition also pointed to NOAA’s refusal to consider sea ice losses in listing decisions involving other species.

The federal appeals court panel, in an opinion written by Judge Richard A. Paez, had little difficulty in rejecting the arguments. Paez pointed out that the Ninth Circuit has held, in a Feb. 2016 opinion rejecting another ESA challenge brought by AOGA, that IPCC climate models do represent “best available science” and that the U.S. Court of Appeals for the District of Columbia Circuit has also rejected arguments that IPCC models cannot be used in connection with ESA listing decisions.

The panel emphatically rejected the argument that a lack of certainty inherent in the climate models NOAA used renders them useless as a foundation for a listing decision:

“The fact that climate projections for 2050 through 2100 may be volatile does not
deprive those projections of value in the rulemaking process. The ESA does not
require [the agency] to make listing decisions only if underlying research is ironclad and absolute.”
Monsell pointed out that the Ninth Circuit panel’s decision solidifies the role of climate science in making decisions about implementing the ESA, at least in cases of organisms dependent on frozen Arctic habitats.

“The court firmly affirmed the notion that there’s no debate that temperatures will continue to increase over the remainder of the century and that the effects will be particularly acute in the Arctic,” she said. “It affirmed the notion that the scientific consensus accepted by an overwhelming majority of climate scientists, is that Arctic sea ice will continue to recede through 2100.”

Spokespersons for both AOGA and the state of Alaska told Alaska Dispatch News on Oct. 24 that those entities will consider whether to seek en banc review of the panel decision in Alaska Oil & Gas Association v. Pritzker or whether to ask the U.S. Supreme Court to review the case.

Monsell said that she does not think such further review is likely.

“En banc petitions are rarely granted and cert petitions are granted even less frequently,” she explained. “We think the Ninth Circuit opinion is well-reasoned, the right one under the law, and will be upheld and that it’s unlikely to even be reconsidered.”

One of the first disputes that may be affected by the Ninth Circuit’s decision in the bearded seal case is a challenge to the listing of the Arctic subspecies of ringed seal (Phoca hispida hispida) as a threatened species. CBD included P.h. hispida in the same petition that asked for the listing of E.b. nauticus.

NOAA listed P.h. hispida as threatened in December 2012 and, as they did in response to the designation of the Pacific bearded seal as threatened, the oil industry and several native Alaskan organizations challenged that action in federal court.

In March 2016 U.S. district judge Ralph R. Beistline ruled, as he had in the challenge to the bearded seal listing, that NOAA’s use of climate science models to project habitat loss later in the 21st century is inconsistent with the ESA’s mandate to use only the “best available scientific and commercial data available” when making listing decisions.

Monsell said that she is optimistic that the Ninth Circuit will reverse Beistline’s decision in the Arctic ringed seal case, too.

“There’s a stronger case for listing the ringed seal in some ways because of the unique habitat needs,” she explained. “Ringed seals, unlike other seal species, dig snow caves and they need not only a certain amount of ice, but also a certain amount of snow on top of the ice to build them.”

The legal limbo to which NOAA’s sister wildlife agency, the U.S. Fish & Wildlife Service, consigned Pacific walrus (Obodenus rosmaurs divergens) in 2011 may also be affected. USFWS specified that O.r. divergens is a candidate for ESA listing on grounds that it lacks the resources to do the work needed to add the animal to the federal list of threatened and endangered species.

A July 2011 litigation settlement agreement between USFWS and CBD requires USFWS to make a decision about listing the Pacific walrus before the end of August 2017.

Not all organisms affected by ongoing human alteration of the atmosphere are found in the Arctic. USFWS is likely to face decisions about whether to list other species that are likely to lose habitat, and which may already be experiencing habitat loss, as climate change proceeds.

Monsell pointed to the American pika (Ochotona princeps), a subspecies of moose (Alces alces andersoni) that is native to the upper Midwest, and the wolverine (Gulo gulo) as examples of American wildlife species that may now be more likely to be added to the federal list of threatened and endangered species as a result of the decision.

USFWS has twice rejected petitions to add the American pika to the list of threatened or endangered species, most recently last month. But new research indicates that O. princeps will suffer as rising temperatures affect their high elevation habitat. A paper published earlier this year concluded that the tiny relative of the rabbit is likely to be extirpated in at least some of its refuges scattered around mountainous areas of the West.

“The consensus of all the projections is decline,” Dr. Chris Ray, a biologist at the University of Colorado at Boulder’s Institute for Arctic and Alpine Research who has extensively studied the species, said. “I would hazard an estimate that most projections under moderate climate scenarios project maybe a loss of at least 50 percent of the suitable habitat during this century.”

Unfortunately, the plight of the pika also indicates that currently available climate models may not help scientists assess conservation prospects for every species.

Ray explained that biologists do not yet understand enough about the impacts of a warming atmosphere on the sub-surface habitat pikas depend upon to escape daytime heat.

“We don’t necessarily have enough information about the process by which pikas are affected by climate or other stressors,” she said. “We don’t understand the process well enough to model them in great detail.”

american-pika-courtesy-wikimedia
The American pika is native to the mountains of the west and is usually found in boulder fields above treeline. Image courtesy Wikimedia.

That uncertainty has also been a barrier to securing ESA protection for  the wolverine.

Opponents of a listing argued that models of future snow cover, an indication of habitat quality for the species, are too unreliable.

USFWS ultimately backed away from an earlier proposal to designate G. gulo as threatened because, among other reasons, the agency did “not have sufficient information to understand the specific response of wolverines to future effects of changes in climate.”

A U.S. district judge in Montana rejected that rationale in April 2016. In his decision, Judge Dana Christensen ordered USFWS to reconsider its decision to deny the wolverine ESA protection. He emphasized that federal wildlife agencies are to take a proactive approach to species conservation under the ESA:

“It is the undersigned’s view that if there is one thing required of the Service under the ESA, it is to take action at the earliest possible, defensible point in time to protect against the loss of biodiversity within our reach as a nation.”

As for the moose of the upper Midwest, USFWS decided in June that the population of the animal in Michigan, Minnesota, North Dakota, and Wisconsin is a candidate for addition to the list of threatened and endangered species.

 

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