Climate models critical to ESA listings The listing of animals threatened by warming climate hinges on how far into the future models can predict future climate trends Alan Bailey Petroleum News
There was a time, not too many years ago, when wildlife such as the Lower 48 bald eagle qualified for protection under the Endangered Species Act because a precipitous population decline had flagged the imminent possibility of extinction. But nowadays, with increasing concern about the Earth’s warming climate, there has been a burgeoning trend to list species perceived to be threatened by climate change, regardless of whether the populations of those species have shown any inclination to drop.
The poster child for this new trend is the polar bear, listed as threatened in 2008 because of the destructive effects of global warming on the bear’s sea-ice habitat.
Climate models Climate-change-related listings depend on climate models that make predictions about future climate trends. And all of the recent listing decisions have hinged on the same climate science, the science presented in the fourth report of the Intergovernmental Panel on Climate Change, or IPCC, Jason Morgan, an attorney with law firm Stoel Rives LLP, told the Law Seminars International’s Endangered Species Act — Impacts on Alaska seminar on Feb. 24.
The question of how to predict the future is critical in the application of the ESA because of wording in the act that says a species is threatened if there is a likelihood of the species becoming extinct at some time in the “foreseeable future.”
But, in the context of climate change, what exactly is meant by “foreseeable,” and how far into the future can the climate be foreseen? If climate science were to predict the extinction of 50 percent of current species in 200 years, would that constitute the foreseeable future and, if so, what impact would that forecast have on the application of the ESA, Mason asked.
The IPCC report made climate predictions through to 2050, using existing, known greenhouse gas concentrations in the atmosphere, with the models becoming markedly less certain beyond that time window. So, the period to 2050 became the “foreseeable future” for the polar bear listing, with the U.S. Fish and Wildlife Service using the IPCC climate predictions to project future loss of the polar bear’s sea ice habitat.
“They picked the 45-year foreseeable future because for the first half of the 21st century, to 2050 or so, the models used by the IPCC are largely based on existing carbon inputs,” Morgan said.
Further into the future But in the case of the Pacific walrus, another Arctic species that uses a sea-ice habitat, Fish and Wildlife appears to have moved that foreseeable future time horizon out towards 2100 by considering IPCC climate models that project beyond 2050, Morgan said. In February the agency designated the walrus as warranting protection under the ESA but currently precluded from protection because of insufficient agency resources to deal with listing the species — Fish and Wildlife has a system for prioritizing proposed listings and has placed the walrus at a lower priority than some other species.
The National Marine Fisheries Service, the federal agency responsible for the management of most U.S. marine mammals, also pushed the time horizon farther out by using climate projections to around 2100 in its December 2010 proposal to list the ringed and bearded seals as threatened, Mason said.
On the other hand, a December 2008 NMFS decision not to list the ribbon seal probably resulted from the restriction of climate predictions to a 50-year window, he said. But the current trend to move the “foreseeable future” time horizon out to 100 years will likely trigger an increasing number of listings.
“The longer the horizon gets out on foreseeable future … the more species seem to fall within that net,” Mason said.
In addition, the fact that the Fish and Wildlife Service, an agency within the Department of the Interior, oversees polar bears and walrus, while NMFS, an agency within the National Oceanic and Atmospheric Administration, oversees other marine mammals has also been leading to some inconsistencies in the way in which the ESA is being applied, Mason said.
Special ESA rules These inconsistencies have become particularly evident in the use of section 4(d) of the act, the section that allows the regulating agency to instigate special regulations for a threatened species. In the case of the polar bear, Fish and Wildlife introduced a special 4(d) rule allowing this species to be protected under the regulations of the Marine Mammals Protection Act and the Convention on International Trade in Endangered Species, with this rule being of particular benefit to the petroleum industry and to communities within the polar bear’s range. Fish and Wildlife also backed the ESA out of greenhouse gas regulation by implementing a 4(d) rule excluding activities outside the bear’s range from incidental take considerations — without this rule any activity in the U.S. that generates greenhouse gases might be viewed as harassing polar bears.
But NMFS, the agency now facing the listings of multiple sea-ice-dependent species, has so far shown no inclination to introduce 4(d) rules of the type that Fish and Wildlife has introduced, Mason said.
“They’re going to be faced in the near future with having multiple species that are listed on the basis of loss of sea ice, and they’re going to have to wade into this (greenhouse gas regulation) question, unless … they put out their own 4(d) rule,” Mason said.
Consultation costs A key provision of the ESA is the requirement for consultation with the appropriate regulating agency if an activity involving the federal government may impact a listed species (almost all industrial activities in Alaska involve the federal government in some way). The regulating agencies have downplayed the potential costs of these ESA consultations, but industry has estimated that the cost of a consultation could run to hundreds of thousands of dollars — companies have to go through the consultation process thoroughly or risk having projects stopped through litigation, Mason said.
And, for companies operating in Alaska, the designation of listed species critical habitat over wider and wider areas of territory is also causing major concern, with the designation of 187,257 square miles of polar bear critical habitat attracting particular attention. The designation of critical habitat will create process related costs for people conducting projects and may prohibit certain projects, Mason said. The regulating agencies have adopted a position saying that critical habitat designations do not have much impact beyond that of the ESA consultation requirements, but there is reason to believe that it is more difficult to carry out a project in an area of critical habitat than elsewhere, he said.
“There is the potential for critical habitat to effectively preclude certain projects from happening just by virtue of its existence,” Mason said. “It becomes politically untenable for an agency to authorize certain projects within designated critical habitat, simply because it is critical habitat.”
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