January 26, 2021

Volume XI, Number 26


January 25, 2021

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Use Of Long-Term Climate Projections For Bearded Seal Listing Not Necessarily A Bellwether For Endangered Species Act Decisions

The Ninth Circuit this week upheld a National Marine Fisheries Service decision to list the Pacific bearded seal as threatened under the Endangered Species Act based primarily on threats from climate change, reversing a district court decision that invalidated the NMFS rulemaking.  The court’s opinion in Alaska Oil & Gas Ass’n v. Pritzker, No. 14-35806, was consistent with a 2013 D.C. Circuit opinion that upheld listing the polar bear as threatened based on climate change projections, and with a Ninth Circuit opinion earlier this year that upheld the U.S. Fish and Wildlife Service’s reliance on climate change models as the “best available science” for designating polar bear critical habitat.  But this week’s opinion was noteworthy because the NMFS listing of the bearded seal relied on very long-term (through 2100) climate change predictions to determine that the species is likely to become endangered, while the polar bear listing only evaluated a 45-year “foreseeable future” period.

Some commenters have suggested that the longer-term analysis the NMFS used in this case is troubling because nearly any species could be considered in danger of extinction from climate change over a sufficiently long planning horizon.  But the Ninth Circuit’s opinion does not endorse the use of an 85-year modeling period for all ESA listing decisions, and there is no indication that the NMFS or the USFWS intend to adopt such a long view as standard practice.  The bearded seal listing proposal reflected guidance in a 2009 Department of Interior legal memorandum regarding how to define the “foreseeable future” timeframe for ESA listing purposes, which contemplates a species-specific timeframe for each listing analysis based on the information available regarding the species and the threats to its survival.  For the bearded seal, the NMFS found loss of sea ice over shallower ocean waters was the greatest threat to the species’ survival, and long-term modeling showed that, by 2100, global warming would result in total elimination of such ice during critical times of year.  Although the long-term (2050-2100) model results were more volatile than modeling through 2050, NMFS found broad scientific consensus that the predicted effects would occur; the primary area of uncertainty was the rate of change.  Given the seal’s dependence on sea ice, the court found this evidence sufficient to support the NMFS’ conclusion that the species will become endangered—while also suggesting that the more consistent modeling results through 2050 would have been sufficient to reach the same conclusion.

For most species we encounter in the lower 48, including California, the relationship between climate change and habitat conditions is more complex, and other factors such as development of habitat are typically identified as greater threats to a species’ survival than climate change.  Thus, climate change plays a smaller role in the Services’ analyses, and the Services typically limit their predictions of the “foreseeable future” to a shorter time period between 25 and 45 years.  (An exception is the proposed listing of the wolverine—a species with parallels to the bearded seal in that the USFWS found it depends on persistent spring snow cover for successful denning.)  With that in mind, the bearded seal decision does not necessarily portend a rash of species listings based on long-term climate projections (at least outside the Arctic).

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume VI, Number 302



About this Author

James Rusk, land use attorney, sheppard mullin

James Rusk is an associate with the Land Use and Natural Resources practice group in the firm’s San Francisco office.

Areas of Practice

Natural Resources. Mr. Rusk represents residential, commercial and energy developers in natural resources permitting, regulatory compliance and litigation. He focuses on endangered species, wetlands, and storm water issues under federal and state law, in addition to compliance with the National Environmental Policy Act ("NEPA") and California Environmental Quality Act ("CEQA"). Because every project is...