On October 24, 2016, the Ninth Circuit Court of Appeals upheld the National Marine Fisheries Service's ("NMFS") decision to list certain subspecies of the Pacific bearded seal as threatened under the Endangered Species Act ("ESA"), concluding that NMFS had not acted arbitrarily by relying on climate change projections to determine that the seal is likely to become endangered in the foreseeable future. After being petitioned by the Center for Biological Diversity ("CBD"), NMFS had concluded in 2012 that the species were likely to become endangered by 2095. The Alaska Oil and Gas Association, the State of Alaska and North Slope Borough (collectively, "Plaintiffs") challenged the listing in federal district court in Alaska, arguing that NMFS improperly relied on speculative climate change projections beyond 2050 to make its determination. The District Court had ruled for the Plaintiffs, concluding that NMFS's reliance on long-term climate projections was inappropriate due to their volatility.
NMFS and CBD appealed to the Ninth Circuit, which reversed the District Court's decision. The unanimous panel held that the Intergovernmental Panel on Climate Change ("IPCC") models (on which NMFS's listing decision relies) "reasonably supported the determination that a species reliant on sea ice likely would become endangered in the foreseeable future." The panel also upheld NMFS's decision to change its interpretation of "foreseeable future" to a more dynamic, species-specific and evidence-based definition, rather than its previous practice of setting the year 2050 as the outer boundary.
The Ninth Circuit's ruling is notable in that it upholds federal agencies' ability to use IPCC models to forecast the impacts of climate change on wildlife for purposes of listing decisions under the ESA. Furthermore, NMFS's new flexible interpretation of "foreseeable future" – to almost 100 years into the future – may subject a greater number of otherwise currently healthy species to listing under the ESA
A copy of the opinion is available here: Alaska Oil & Gas Ass'n v. Prtitzker, No. 14-35806, 2016 U.S. App. LEXIS 19084 (9th Cir. Oct. 24, 2016). For questions regarding the potential implications of this case, please contact Angela Levin or Andrea Wortzel.
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