Endangered Species Act

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Presentation transcript:

Endangered Species Act Climate Change and the Endangered Species Act Prof. Tracy Hester University of Houston Law Center Houston, Texas Sept. 24, 2018

Review: NEPA and Climate Change Earliest of federal environmental statutes (1970) – broad Applies when “major federal action” “significantly affects” “quality of human environment” Federal, not state (although beware state mini-NEPAs) “significantly affect” includes Controversial; precedent-setting; unique; cumulative impacts Requires context + intensity Intensity: highly controversial, cumulative, others Both direct and indirect effects, cumulative as well CEQ Guidance on GHG Effects: social cost of carbon; withdrawn Sierra Club v. FERC (D.C. Cir. 2017) – Natural Gas Act section 7 CCN; APA challenge; “indirect actions”; FERC’s power to reject

Endangered Species Act – a Roadmap Protects “endangered” and “threatened” species “In danger of extinction” or “likely to become endangered” through all, or a significant portion, of its range Must be listed (section 4) using “best scientific and commercial data available”, including critical habitat Candidate Conservation Agreemts

Endangered Species Act – a Roadmap Section 7 Federal consultation requirement No jeopardy determination Requires either biological assessment or biological opinion From U.S. Fish & Wildlife Service or National Marine Fisheries Services Incidental Take Permit (or God Squad) Section 9 No “taking” of endangered species (special listing rules) Plants too if protected by state law Habitat Conservation Plans Citizen suits and listing petitions

Zombie Species?

Climate Change and ESA The Sixth Extinction – role of climate change Key questions: When to list a species that faces long-range threat from climate change? When to require consultation for federal actions that affect climate? (Meyers letter to Hall, 10/3/08) When does an action affecting climate result in a taking?

Test cases Polar bear litigation Staghorn coral Bearded seals Alaska Oil & Gas v. Pritzger, 9th Cir. (Oct. 24, 2016) Certiorari denied Upswing in cases: giraffes, lobsters, walruses, arctic grayling, pikas

Recent regulatory initiatives on ESA DOI proposed rules on July 25, 2018 to clarify the operation and scope of listing decisions and consultation requirements Key climate change concern: proposal that agencies need not consult on “global processes” Also changes to special 4d rules for threatened species Deadline for comments: Sept. 24 (yes, today)

Look more closely: What exactly does the Hall memo say?

Extension of attribution studies

Questions? Professor Tracy Hester University of Houston Law Center tdheste2@central.uh.edu 713-743-1152 (office)