The drumbeat of cases, either approving agency action under the ESA – or reversing agency refusal to act – due to habitat alteration resulting from climate change continues to grow. In February, the 9th Circuit reversed a district court decision and approved the Fish and Wildlife Service’s designation of critical polar bear habitat. In April, Judge Christensen of the District of Montana vacated FWS’s decision to withdraw a proposed listing of the wolverine. Now, the 9th Circuit has again weighed in, again reversing a district court judge. This time, the 9th Circuit affirmed the decision by the National Marine Fisheries Service to list the bearded seal as threatened due to “foreseeable” loss of sea ice.
These cases are beginning to reflect a pattern. NMFS put together an expert panel. The expert panel looked at numerous models regarding the extent of sea ice to the end of the century. They examined the impact on a reduction of sea ice, particularly shallow sea ice, on the life cycle of the bearded seal. They concluded that shallow sea ice would decrease substantially after 2050 (and maybe before then), and that that loss of sea ice would threaten the bearded seal. NMFS then called in a peer review group, which confirmed the conclusions of initial panel.
As I noted in connection with the wolverine decision, agency regulation in the face of scientific uncertainty isn’t new. As the 9th Circuit said here:
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 NMFS to make listing decisions only if underlying research is ironclad and absolute. “[W]here the information is not readily available, we cannot insist on perfection: [T]he best scientific . . . data available, does not mean the best scientific data possible.”
As I also noted in discussing the wolverine case, the ESA may not be the best vehicle for addressing the impacts of climate change, but that’s not going to stop an increasing number of such claims making their way through the courts. And if I may speculate for a minute, those in favor of greater protections are going to win most of these cases, at least until Donald Trump has appointed most of the federal judiciary.