Rather, it focuses on how global climate change will affect the administration of the ESA. The pike and the polar bear thus serve as examples of the tension that global climate change will create in the administration of the ESA and other environmental laws.
CLIMATE CHANGE AS AN AGENT OF ECOLOGICAL RESHUFFLING
In that sense, climate change presents scenarios that make anything the FWS has faced in the past look simple. Feedbacks, Nonlinearity and Reorganization - Facing a Non-Analogous Future Three metrics drive much of the discussion of climate change as a global one.
Feedback, Nonlinearity, and Reshuffling - Facing a No-
Given the complexity of the problem, it is no surprise that models of climate change effects are difficult to calibrate. Even when climate change has not been a factor, reliable models that use weather forecast variables to predict the secondary effects of annual weather patterns on other phenomena have proven elusive. Glicksman, Global Climate Change and the Risks to Coastal Areas from Hurricanes and Rising Sea Levels: The Cost of Doing Nothing, 52 Loy.
Despite the great interest and importance in understanding and predicting ecosystem responses to climate change and variability, it is often difficult to relate specific, observable changes in ecosystems to climate change in a rigorous, causal manner.
A Typology of Climate Change Threats to Species
- Prim ary Ecological Effects
- Secondary Ecological Effects
- Human Adaptation Impacts
- THE IMPACT OF CLIMATE CHANGE ON THE ESA
Since some species adapt to climate change by successfully migrating to and settling in areas that offer suitable conditions, their introduction may disrupt predator-prey or other ecological conditions to the detriment of other species.93 One species' successful adaptive migration, in other words , may be another's demise.94. Just as the primary threats to species before climate change centered around human-induced ecological change, it is likely that human adaptation to climate change will play a leading role in threatening species. Resettled human communities are likely to introduce ecological degradation from new or intensified pollution, noise, water diversions and other stresses.99 Many human communities, resettled or not, will also implement climate change mitigation and adaptation measures designed primarily to protect human health and well-being. protected, such as flood barriers on the coast, which in some cases can.
102 The EPA has suggested that “important progress has been made in identifying the effects of climate change on invasive species, but.
Reshuffling the Regulatory Landscape
Secretary of the Interior Bruce Babbitt led a series of policy reforms intended to forge a bipartisan agenda for promoting species conservation while responding to concerns raised in opposition to the statute. Climate change does not fit into any of the known policy domains and affects the policy balance by operating from the existing set of trade-offs. Instead, climate change acts at all levels of the policy triad—that is, the primary mission, the secondary goals, and the background policy context—simultaneously, disrupting not only the content of each level but also the way in which the interplay between each level plays out . out.
Babbitt tested the ESA's policy boundaries against fairly well-defined limitations and complaints that largely boiled down to politics.
Focal Points for Policy Choices
FITTING AGENCY DISCRETION WITH CLIMATE CHANGE
The question will be whether the FWS will fully exercise its discretion in an effort to incorporate climate change as a regulatory mechanism or, instead, But what is the extent of the agency's discretion - how passive or aggressive it can choose to be. Petitioners who have called for regulatory changes to address climate change under the ESA “believe that existing law and regulations already require it.
119 Keeping in mind the six policy choices described above, this section examines the amount of discretion granted to the agency through five separate ESAs.
Section 4: Listing, Critical Habitat, and Recovery Plans
Identifying Species
Although Section 4 leaves no room for debate over whether the agency must integrate climate change effects into the IPO decision, the statute provides considerable flexibility for how the agency does so. 125 For example, unlike its conclusions so far for the polar bear and penguins, the agency was not convinced that the American eel is threatened by the effects of climate change on ocean conditions, despite ample evidence that the effects are real and posing. imminent threats to the species. OF THE ROYAL SOC'Y OF LONDON gathering evidence on threats from changing oceanic conditions associated with climate change).
NMFS took this approach when it designated two coral species as threatened, in part due to the effects of climate change, noting that it would “evaluate the necessity and desirability of proposing protective regulations under section 4(d) of the ESA for these two coral species. species." Endangered and Threatened Species: Final Listing Determinations for Elkhorn Coral and Staghorn Coral, 71 Fed.
Designating Critical Habitat
For example, the agency could rightfully conclude that designating critical habitat for species doomed by climate change is inadequate. 3I The law does not define "prudent". According to FWS regulations, designating critical habitat is not prudent if it "would not be beneficial to the species." 50 CFR 136 The law does not define “indeterminable.” Under FWS regulations, critical habitat is indeterminable if "(i) there is sufficient information to conduct the required analyzes of the effects of the designation, or (ii) the biological needs of the species are not sufficiently known to permit identification of an area as critical habitat." 50 CFR
138 Based on this analysis, the agency may “exclude any area from being considered critical habitat by [the agency].
Formulating Recovery Plans
In addition, the statute provides that the FWS "designates critical habitat and modifies it pursuant to subsection (a)(3) ... based on the best available scientific data and after considering the economic impact, national security impact, and any other significant impact of the designation any designated area as critical habitat. 138 Based on this analysis, an agency may “exclude any area from critical habitat if [the agency ]. determines that the benefits of such exclusion outweigh the benefits of designating such area as part of critical habitat, unless the [agency ]. determines, based on the best available scientific and commercial data, that unless such area is designated as critical habitat, the species in question will become extinct.” 139 The FWS could build a credible case that the designation of critical habitat for some climate-threatened species could thus severely impede human adaptation to climate change in order to justify the exercise of its discretion not to act, assuming that it can be concluded that extinction is therefore not inevitable. 44 Although Professor Federico Cheever has detailed the failure of remediation planning to achieve anything in terms of enforceability,145 he has also outlined the use of remediation plans to guide the implementation of other ESA programmes, including those with regulatory validity.
141 See, e.g., Proposed Recovery Plan for the Evolutionarily Significant Unit (ESU) of Puget Sound Chinook Salmon, 70 Fed.
Section 9: The Take Prohibition
Instead, as the Court stated when it upheld the definition of damages, in many cases it is appropriate to place the burden of proof on the proponent of the vicarious damages theory. In a settlement of a second round of litigation that followed the rejection of a request for an injunction, a developer in Morrill nevertheless agreed to ban pet cats from the development. As they show, most Section 9 enforcement cases are brought by citizen groups under the ESA's citizen action provision.
Applying take bans in such settings, where proximate cause may be less difficult to determine, can help ensure that human adaptation measures do not ignore the interests of endangered species.
Section 7: Jeopardy Consultations
Habitat removal and greenhouse gas emissions are clearly direct effects of increased action on the environmental base,177 both of which can have indirect effects that adversely affect species. Like the EPA under the Clean Air Act, therefore, FWS has no room to avoid its mandate to consider the effects of climate change in consultations under section 7(a)(2) of the ESA. The fact that most consultations will not reach a dangerous conclusion based on the indirect effects of greenhouse gas emissions of action or the cumulative effects of climate change is beside the point.
To say that FWS and NMFS can err on the side of species in the face of inconclusive evidence, including in the case of the effects of climate change, is not to say that they should.
Section 10: Incidental Take Permits and Experimental
Adaptive Management Provisions of Incidental Take
Indeed, the Ecological Society of America's comprehensive study on ecosystem management takes the use of adaptive management methods for granted. For in-depth discussions of the integration of adaptive management into the HCP program generally, see Holly Doremus, Adaptive Management, the Endangered Species Act, and the Institutional Challenges of "New Age" Environmental Protection, 41 WASHBURN L.J. On the other hand, one can equally reasonably complain that flexible management undermines the no-surprises policy, since its purpose is to ensure that decisions can be adjusted after the HCP is issued.
Therefore, it should be in the interest of both the agency and the applicant to negotiate a flexible management provision that defines its scope and [vol.
Assisted Migration Through Experimental Populations
The Ubiquitous "Best Science" Standard
USING THE ESA To CARRY SPECIES TO THE NO-ANALOG FUTURE
Indeed, the FWS must assume that the effects of climate change will increase even if the global community takes steps to mitigate greenhouse gas emissions. The agency's goal should be to use the ESA to identify and monitor the ecological redistribution effects of climate change. The agency's goal should be to support the bridging function of the ESA and to reduce the adverse impacts of human adaptation to climate change on species.
The agency's goal should be to get as many species with a long-term chance of survival and recovery through the transition to the other side of climate change as is realistically possible.
