United States: Ninth Circuit Affirms Endangered Species Act Listing Decisions Based On The Effects Of Climate Change

As first covered in the Spring 2013 issue of The Climate Report, on March 1, 2013, the United States Court of Appeals for the District of Columbia Circuit affirmed U.S. Fish and Wildlife Service's ("FWS") listing of the polar bear as "threatened" under the Endangered Species Act ("ESA"). The court did so based in part on FWS's reliance on numerous published studies and reports describing the effects of climate change, including predictive climate models from the Intergovernmental Panel on Climate Change. See In re Polar Bear ESA Listing & Section 4(d) Rule Litig., 709 F.3d 1 (D.C. Cir. 2013).

In 2016, the United States Court of Appeals for the Ninth Circuit took up the mantle and twice concluded that future climate change is an appropriate consideration under the ESA, reversing the District of Alaska's holding that the listing decisions were arbitrary and capricious. First, in Alaska Oil and Gas Association v. Jewell, 815 F.3d 544 (9th Cir. 2016), the Ninth Circuit upheld FWS's decision to designate an area of Alaska's coast and waters as critical habitat for the polar bear, noting that FWS properly considered future climatic factors in designating critical polar bear habitat. The state of Alaska, industry organizations, and Alaska Native groups have recently filed petitions for a writ of certiorari seeking reversal of the Ninth Circuit's decision. See Nos. 16-596, 16-610.

Second, the Ninth Circuit upheld the National Marine Fisheries Service's ("NMFS") decision to add a subspecies of the Pacific bearded seal to the endangered species list. Alaska Oil & Gas Ass'n v. Pritzker, 840 F.3d 671 (9th Cir. 2016). The court found that NMFS's projections of future habitat loss due to climate change were reasonable, scientifically sound, supported by evidence, and based on the best available scientific data.

In 2017, the Ninth Circuit will have a third opportunity to address a listing decision under the ESA, this time NMFS's decision to list the Arctic ringed seal as a threatened species. Alaska Oil & Gas Ass'n v. Pritzker, Nos. 16-35380, 16-35382. As in the two 2016 cases, the District of Alaska found the listing decision arbitrary and capricious. NMFS appealed. Briefing on the appeal is expected to be completed sometime in the first quarter of 2017.

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