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Ribbon seal
Carbon Control News, August 30, 2010

Court Fight May Determine Scope Of Climate Findings To Protect Species
By Doug Obey

A pending lawsuit in federal district court could provide a first-of-its-kind ruling on how far into the future federal agencies must look when predicting potential damages from climate change under the Endangered Species Act (ESA).

Environmentalists are challenging a recent decision by federal officials to limit their forecast to impacts between now and 2050 in determining whether a seal species warrants federal protection.

The case is one of numerous legal fights over the ESA’s ability to guard against and mitigate the effects of global warming on species — battles where the federal government has generally sought to limit the reach of the law.

The United States District Court for the Northern District of California is poised to hear arguments Sept. 2 in Center for Biological Diversity and Greenpeace v. Jane Lubchenco et al., which challenges a December 2008 decision by the National Marine Fisheries Service (NMFS) to deny ESA protections to the ribbon seal, an ice-dependent species.

The environmental groups cite several concerns with the legal basis for the denial, focusing particularly on the time horizon NMFS used to determine that serious climate risks to the species are not “foreseeable” under the ESA.

While the case is not the only pending legal battle on how far into the future to assess global warming risks under the ESA, it may yield a decision sooner than a separate, largely industry-focused challenge on polar bear protections expected to be heard in October in the United States District Court for the District of Columbia, according to sources familiar with the case. That case, In Re Polar Bear Endangered Species Act Listing and Section 4 (d) Rule Litigation, consolidates both industry and environmentalist suits. Industry is challenging a designation of the polar bear as threatened in part by arguing that the Fish & Wildlife Service improperly used a 45-year time horizon to assess risks to the species. Industry litigants suggest that timeframe should have been shorter.

The environmentalists’ seal lawsuit is one of a series of fights that began about 10 years ago over efforts to extend ESA protections to species based on climate risks — an effort geared both toward raising general awareness of climate change and forcing more thorough reviews of the climate-related impacts form federal actions, including permit approvals.

Environmentalists’ opening brief in the seal case contends that NMFS unreasonably turned a “blind eye” to foreseeable climate impacts beyond 2050 in assessing risks to its habitat. In doing so, the environmentalists argue, the agency “irrationally dismissed universally-accepted Intergovernmental Panel on Climate Change (IPCC) scenarios as too variable to be foreseeable”; relied on uncertain future regulatory measures to “conjure a false appearance of uncertainty”; and disregarded the fact that “all climate scenarios are worse” for the ribbon seal after 2050. In addition, the groups say the agency ignored the frequent use of timescales of a century or more to monitor risks to species; set a standard that dooms ribbon seals to extinction; and ignored ocean acidification impacts beyond 2050 that NMFS itself has anticipated. The group expands on those arguments in a subsequent filing.

The Department of Justice, on behalf of NMFS, in a June brief in the case counters in part that the 2050 timeframe is reasonable because climate projections “rapidly deteriorate in reliability” beyond 2050; the seal population is “presently healthy and robust”; the risks to the seal do not appear sufficiently large to merit protections despite “conservative” assumptions in the agency; and that the agency is entitled to deference in its decision-making.

On a separate front, CBD Aug. 23 filed four new petitions with the Department of Interior seeking protections under the ESA for several mountaintop species, specifically the San Bernardino flying squirrel, the Bicknell’s thrush, the white-tailed ptarmigan and the ‘I’iwi — a Hawaiian songbird. All of the species live at high elevations where their habitat is threatened from global warming, according to the group.

Photo © Paul S. Hamilton