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Endangered Species Act Finds New Teeth in Climate Change

By George Khoury, Esq. on October 27, 2016 | Last updated on March 21, 2019

This week, the Ninth Circuit Court of Appeals affirmed the ruling of the National Marine Fisheries Services (NMFS) to put sea ice seals, aka bearded seals, on the threatened species list. While adding a species to the threatened species list is nothing new, how the bearded seal made it on the list is quite unique.

The Ninth Circuit Court considered evidence that the seals' habitat was being destroyed by climate change. Based on current climate change trends, projections for their habitat are bleak. What's significant here is that the court is accepting the climate change projections for the years 2050 to 2100. A similar ruling was upheld in the DC Circuit in 2013 concerning polar bears, but generally it's very rare for a court to list a species as threatened based on climate change projections.

Court Acknowledges Climate Change Projections

The Ninth Circuit Court defended the NMFS's reliance on scientific data showing climate change projections that suggested the bearded seals' habitat would be destroyed by the turn of the century. The court's ruling overturned the 2014 lower court's decision that ruled that climate change projections were not sufficient to base listing a species a threatened.

The court explained that the Endangered Species Act does not require a habitat be destroyed before an agency can take action. Additionally, the court explained that agencies do not require ironclad scientific results, but merely the most reliable and the best available data.

Opponents Fight for Drilling Rights

Among the opposition to this decision are supporters of off-shore drilling. As the bearded seals make their homes along the coast in the shallow waters, the state of Alaska, as well as proponents of off-shore oil drilling, are concerned that preserving the habitat of the bearded seal will prevent continued off-shore oil exploration and extraction.

While the state is considering filing an appeal of this decision, animal rights groups should be celebrating this decision and preparing to make more headway. This decision lays out the path for more agencies to seek protections for species that could potentially be threatened due to climate change impacting their habitats.

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