Climate Change/Environmental
12/11/2007 6:37:01 PM EST
Marten Law Group: The Battle Over the Bear: Climate Change Playing a Larger Role in Species Protection
Attorney, Marten Law Group
In this Emerging Issues Commentary, Jessica Ferrell of the Marten Law Group examines efforts by environmental groups to require federal wildlife services to consider climate change impacts in listing decisions under the Endangered Species Act (ESA). Among the topics discussed are the regulatory consequences of ESA listing and critical habitat designation, potential regulatory implications of listing the polar bear, petitions to list other species due to climate change threats, litigation regarding climate change and endangered species, and proposed legislation to address climate change and endangered species. Should efforts by environmental groups to obtain protection for species affected by climate change prove successful, insight is provided as to the implications for developers and resource industries. In addition, Ms. Ferrell offers expert advice for counseling clients on climate change and species protection issues whether the client is a federal, state or local governmental agency; a conservation organization; a private landowner; a developer; or a water rights holder.
The author writes:
A precautionary listing of a vertebrate species based primarily on the effects of climate change would be an unprecedented development under the [Endangered Species Act (“ESA”)]. This new brand of ESA initiatives — basing listing on climate changes that can likely only be addressed by actions far from the species being protected — could redefine the reach of the ESA and other wildlife protection laws. In the Center [for Biological Diversity]’s associated lawsuits, plaintiffs are attempting to force the [U.S. Fish & Wildlife Services] and the National Marine Fisheries Service (“NMFS”) to: (1) designate critical habitat for species under the ESA; (2) reverse prior delisting decisions; (3) consider climate effects under the National Environmental Policy Act (“NEPA”) before authorizing incidental taking of listed species; and (4) require NMFS to update stock assessment reports for marine mammals under the Marine Mammal Protection Act (“MMPA”). There has also been congressional interest, including the introduction of two bills in the House and Senate that focus on climate change and wildlife. These legislative, judicial, and regulatory developments could lead to new or tighter restrictions on development and related activities in areas containing listed species or designated as critical habitat, particularly in coastal zones and high mountain regions. Commercial fishing, oil and gas exploration, and sport hunting could also be impacted.
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