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Species Threatened by Climate Change Can Gain Endangered Species Act Protections

By Casey C. Sullivan, Esq. on October 26, 2016 | Last updated on March 21, 2019

The Pacific bearded seal's future is on thin ice, literally and figuratively. The seals, known for their long, mustache-like whiskers, live and feed off the ice flows that cover the shallow waters off the coast of Alaska and the Arctic. Those flows are expected to decline dramatically, shrinking as climate change drives temperatures north. By 2095, loss of ice will leave the Okhotsk and Beringia bearded seal population segments endangered, according to estimates by the National Marine Fisheries Service.

As a result of the threat posed by climate change, NFMS listed the seals as threatened under the Endangered Species Act, a designation that comes with significant protections. And that listing, the Ninth Circuit ruled on Monday, was wholly allowable, rejecting a challenge that the listing was too speculative.

"The Service Need Not Wait"

"This case turns on one issue," Judge Richard A. Paez wrote for the unanimous three-judge panel.

When NMFS determines that a species that is not presently endangered will lose its habitat due to climate change by the end of the century, may NMFS list that species as threatened under the Endangered Species Act?

The answer, he found, was yes.

The Endangered Species Act provides protections for plants and animals "endangered," facing extinction throughout all or a significant portion of their range, or "threatened," at risk of becoming endangered "within the foreseeable future." NMFS classified the bearded seal populations as threatened after climate models showed the seals' ice habitat disappearing due to climate change, leading to likely endangerment by the century's end, if not sooner.

That listing was tossed out in district court, however, after the State of Alaska and the Alaska Oil and Gas Association sued, arguing that NMFS's decision was based on volatile, speculative predictions and failed to account for the specie's adaptability.

The Ninth rejected that argument. The service determined that loss of Arctic ice would "almost certainly" threaten the seals, the court noted, and it did so based on a host of evidence and after significant public input. "The service need not wait until a species' habitat is destroyed to determine that habitat loss may facilitate extinction," Judge Paez wrote.

The seals now join polar bears on the list of climate-imperiled protected species. It's a short list as of now, but given that both the Ninth and the D.C. Circuits have upheld climate related ESA listings, it's a list that is likely to grow in the future.

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