Thursday, April 07, 2016

Climate Change and the ESA: Protecting the Wolverine in the Face of Uncertainty

by Seth Jaffe

Under the Endangered Species Act, a species is “threatened” when it is “likely to become an endangered species within the foreseeable future.”  As scientists continue to predict that climate change will alter habitat over the coming century, it certainly seems “foreseeable” that more species will become endangered.  That’s what the Fish & Wildlife Service concluded about the wolverine in early 2013.  When FWS backtracked in 2014, Defenders of Wildlife sued.  Earlier this week, Judge Dana Christensen held that FWS’s decision to withdraw its proposed listing of the wolverine was arbitrary and capricious.

The case is important for two reasons.  First, as the FWS acknowledged with more than a hint of trepidation:
The situation [the Service] face[s] with the wolverine – whether a species is likely to become endangered in the foreseeable future because of climate change effects – will become a common source of petitioned actions and threaten the Service’s resources to address priority issues.
...Which leads to the next reason why the case is important.  As the FW&S gets deluged with petitions requesting that various species be threatened because it is “foreseeable” that habitat loss resulting from climate change will cause them to become endangered, how must the FWS assess the science supporting a listing petition?  The FWS is supposed to look to the “best scientific and commercial data available”.

With respect to the wolverine petition, those challenging the proposed listing and the FWS when it backtracked both pointed to substantial uncertainties about the two key studies on which the petition and the proposed listing were based.  However, neither the opponents nor the FWS pointed to any better science; all they did was point out alleged flaws and uncertainties in the studies.  To which the Court responded:
Quite simply, the Service cannot demand a greater level of scientific certainty than has been achieved in the field to date – the ‘”best scientific data available’ … standard does not require that the [Service] act only when it can justify its decision with absolute confidence,” and “the ESA accepts agency decisions in the face of uncertainty.”
The Court certainly got this one right.  As we’ve noted previously in this space, at least since Ethyl Corp. v. EPA, the courts have acknowledged that agencies can and sometimes must regulate “with developing evidence, with conflicting evidence, and, sometimes, with little or no evidence at all.”

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