HIGHLIGHTS:

  • The U.S. Court of Appeals for the Ninth Circuit held for the first time that a species may be listed under the Endangered Species Act based on projections about what could happen nearly 80 years from now in terms of habitat loss and species response.
  • The court found it reasonable to conclude that due to climate change projections of ice loss, populations of bearded seals will become endangered by the year 2095.
  • The opinion is noteworthy because it allowed the extension of the "foreseeable future" timeframe almost 50 years beyond any prior listing decision and reconfirmed that reliance on climate change models, even if uncertain, may constitute "best available science."

In Alaska Oil & Gas Ass'n v. Pritzker, the U.S. Court of Appeals for the Ninth Circuit recently upheld a rule listing two species of seals as "threatened" under the Endangered Species Act (ESA) based on climate change projections and associated loss of habitat from reduction of sea ice. The listing rule concluded that the loss of sea ice over shallow waters in the Arctic would leave the Pacific bearded seal subspecies endangered by the year 2095. Reversing the U.S. District Court for the District of Alaska, which concluded that the climate projections and modeling were uncertain and unreliable, the appellate court on Oct. 24, 2016, held that the National Marine Fisheries Service's (NMFS) listing decision was reasonable and supported by substantial evidence.

The case has garnered particular attention based on its use of climate modeling over an almost 100-year horizon, despite acknowledging the inherent uncertainty and increasing variability of such models over time. The case has caused consternation because it is possible to argue that almost any species could become in danger of extinction from climate change over a long enough period. However, it is also arguable that such a finding could be limited on its facts, as discussed in this alert.

Legal Background and Lower Court Opinion

On Dec. 28, 2012, the NMFS issued a final rule listing the Beringia and Okhotsk distinct population segments (DPS) of bearded seals as "threatened" under the ESA (2012 listing decision).1

The ESA defines a "threatened species" as one that "is likely to become endangered in the foreseeable future throughout all or a significant portion of its range." In 2008, the Center For Biological Diversity filed a petition to list the subject species as endangered, citing global warming as the primary threat to bearded seals. In the 2012 listing decision, NMFS listed the bearded seal as threatened due to predicted loss of sea ice habitat related to climate change. NMFS based its decision on modeled projections nearly 100 years into the future. Bearded seal populations are presently stable.

In challenging the 2012 listing decision as arbitrary and capricious under the Administrative Procedures Act (APA), the plaintiffs – various oil and gas interests as well as the state of Alaska – raised several alleged errors on the part of the NMFS, including: 1) the listing decision was not based on the "best scientific and commercial data available" in violation of 16 U.S.C. §1533(b)(1)(A), 2) the population of bearded seals was presently plentiful, 3) a lack of reliable population data made it impossible to determine an extinction threshold, 4) use of predictive climate projections beyond 2050 was speculative, and 5) lack of a causal connection between the loss of sea ice and the impact of that loss to the bearded seals' viability.

The Alaska District Court agreed with the plaintiffs that NMFS's 2012 listing decision was arbitrary and capricious, and that NMFS did not act reasonably due to uncertainty in modeling and unreliability in predications that extend so far into the future. In setting aside the 2012 listing decision, the lower court focused on two factors: 1) the lack of any articulated discernable, quantified threat of extinction within the reasonably foreseeable future and 2) the express finding that, because existing protections were adequate, no further protective action need be taken at this time. Of significance to the lower court decision was the fact that NMFS acknowledged that it did not have sufficient data to determine the resilience of bearded seals to cope with climatic changes or to define an extinction threshold for bearded seals, much less assess the probability of reaching that threshold within a specified time.

The Ninth Circuit Decision

Using the same APA arbitrary and capricious standard as the lower court, the Ninth Circuit was considerably more deferential to NMFS, finding that the 2012 listing decision was reasonable. Foremost, the Court addressed the agency's reliance on predictive data from the Intergovernmental Panel on Climate Change's (IPCC) Fourth Assessment Report. NMFS used the IPCC report to determine the magnitude and timing of climate change's impact on the availability of sea ice in areas inhabited by bearded seals. The IPCC projections indicated that by 2095, sea ice in several regions where the bearded seals give birth will have disappeared entirely during the mating, nursing and birthing seasons.

The Ninth Circuit panel supported the species-specific "foreseeable future" of 2095 used by NMFS and acknowledged that the modeling had certain issues of volatility and reliability but deferred to the agency given the complexity of the modeling and NMFS's disclosure of the limits of its approach. Slip Op. at 16-17. In particular, the court found that "NMFS's projections for the second-half of the century are also reasonable, scientifically sound, and supported by evidence" (Slip Op. at 17), despite a lack of data going beyond 2050. "The fact that climate projections for 2050 through 2100 may be volatile does not deprive those projections of value in the rulemaking process." Citing the ESA's standard of "best scientific and commercial data available," the court held that there is "scientific consensus regarding the 'direction and effect' of climate change." Slip Op. at 19. In fact, the Ninth Circuit acknowledged that this case may be about more than this listing:

Although Plaintiffs frame their arguments as challenging long-term climate projections, they seek to undermine NMFS's use of climate change projections as the basis for ESA listings. Plaintiffs' contention is unavailing; in Alaska Oil and Gas Association v. Jewell, we adopted the D.C. Circuit's holding that the IPCC climate models constituted the "best available science" and reasonably supported the determination that a species reliant on sea ice likely would become endangered in the foreseeable future.

Slip Op. at 16

In response to the overall theme that climate change impacts on species cannot be reliably predicted, the Ninth Circuit reached the following conclusion: "The ESA does not require NMFS to base its decision on ironclad evidence when it determines that a species is likely to become endangered in the foreseeable future; it simply requires the agency to consider the best and most reliable scientific and commercial data and to identify the limits of that data when making a listing determination." Slip Op. at 20.

Projections for Future ESA Listing Decisions

As acknowledged by NMFS and the Ninth Circuit, per U.S. Department of the Interior 2009 Guidance, listing decisions must be made on the basis of a species-specific timeframe for each listing analysis based on the information available regarding the species and the threats to its survival.

While the use of climate modeling has become more common and may become a regular feature of ESA listing decisions, not all species will have as direct a relationship with climate change impact as many arctic species. Arctic species such as the bearded seal are uniquely dependent on sea ice, and the IPCC climate modeling provided direct predictions related to the loss of this resource. Other species in the continental states have a more complicated relationship with climate change, and such listing analyses are unlikely to be supported so directly by a long horizon model.

With the pending change in administration and professed distrust of climate change science by President-Elect Donald Trump, it is possible that the use of such climate change models may be rolled back entirely through policy revisions likely to be undertaken by the new administration. Further, the case creates new fodder for Republican efforts to amend the APA to provide for de novo review. Earlier this year, Republicans introduced the Separation of Powers Restoration Act of 2016 to eliminate the well-established Chevron deference test established by the unanimous U.S. Supreme Court 1984 decision, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which required courts to accept an agency's reasonable interpretation of the ambiguous terms of a statute that the agency administers, and it is rumored that the new administration would take action to pass this legislation.

Finally, the case may fuel ongoing pressure at the legislative level to amend the ESA. Thus, although this case has been touted as a win for climate change science, it could also serve as a rallying point for the new administration to undertake more sweeping APA and ESA reforms.