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Climate Change and The Endangered Species Act

Climate Change and The Endangered Species Act . Alexis K. Segal Southeast Climate Consortium Fellowship University of Florida, Levin College of Law LL.M. August 2013 Pending Publication in:

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Climate Change and The Endangered Species Act

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  1. Climate Change and The Endangered Species Act Alexis K. Segal Southeast Climate Consortium Fellowship University of Florida, Levin College of Law LL.M. August 2013 Pending Publication in: Randall S. Abate, ed., Climate Change Impacts on Ocean and Coastal Law: U.S. and International Perspectives (Oxford University Press, forthcoming Nov. 2014)

  2. The Snail Darter Sets the Tone Supreme Court in TVA v. Hill, 1978: “…the most comprehensive legislation for the preservation of endangered species ever enacted by any nation…” “The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost”

  3. Section 4: Listing Gateway • Species • Plants and Animals • Threatened v. Endangered • FWS or NOAA • FWS: Terrestrial & Freshwater • NOAA: Marine • Critical Habitat • Concurrent listing rare • Economic factors • Politics • Recovery Plan

  4. § 4: Listing Criteria • 1. Destruction of Habitat • 2. Overutilization • 3. Disease or predation • 4. Inadequacy of regulation • 5. Other natural or man-made factors Best Available Science Required

  5. Listing example 1: Acropora → Elkhorn/Staghorn coral; Florida, Caribbean→ 2004 petition→ 2006 listing as threatened→ 2008 critical habitat designation→ 2012 proposed listing of 66 corals pending

  6. Listing example 2: Ribbon Seal → Western Alaska sea ice habitat→ 2007 petition→ 2008 listing not warranted→ 2010 legal challenge against NMFS for ESA violation→ Court upholds NMFS finding

  7. Listing example 3: Colorado Cutthroat Trout → Upper Colorado River Basin→ 1999 Petition→ 2007 Listing Not Warranted→ 2012 Legal Challenge against FWS for ESA Violation→ Court upholds FWS Finding

  8. Is ESA listing sufficient to help regulate climate change for imperiled species?

  9. Where do we go from here? • ESA section 4 broad language opens the door to climate change consideration • Courts deference to agency determinations closes the door • Congress slow to act • Agency policy application and litigation currently determinative • ESA is a strong but imperfect tool to handle the urgent challenge

  10. Thank you!

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