The Endangered Species Act and Climate Change: Selected Legal Issues

"For more than a decade, federal agencies have grappled with how to address climate change effects when implementing the Endangered Species Act of 1973 (ESA). The ESA aims to protect threatened and endangered fish, wildlife, and plants from extinction. As set forth by Congress, one of the main purposes of the ESA is to “provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.”

The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, the Services) have acknowledged that the changing climate may threaten the survival of and habitat for some species. As noted by courts and legal scholars, the ESA does not expressly require the Services to consider the effect of climate change in their ESA decisions. However, the ESA and its implementing regulations (1) direct the Services to consider “natural or manmade factors affecting [a species’] continued existence” when determining whether a species should be protected under the ESA; and (2) require the Services to analyze cumulative effects on a species’ survival when analyzing whether federal actions jeopardize a species protected under the Act. The courts and the Services have interpreted these provisions as requiring the Services to consider climate change effects in the ESA decisionmaking process. Various lawsuits have challenged the Services’ interpretation of complex scientific data or models that predict short- and long-term effects from a changing global climate on specific species and their habitats..."
Endangered Species Act

Trump Administration Improves the Implementing Regulations of the Endangered Species Act

"In its more than 45-year history, the Endangered Species Act (ESA) has catalyzed countless conservation partnerships that have helped recover some of America’s most treasured animals and plants from the bald eagle to the American alligator. Today, U.S. Secretary of the Interior David Bernhardt unveiled improvements to the implementing regulations of the ESA designed to increase transparency and effectiveness and bring the administration of the Act into the 21st century.

“The best way to uphold the Endangered Species Act is to do everything we can to ensure it remains effective in achieving its ultimate goal—recovery of our rarest species. The Act’s effectiveness rests on clear, consistent and efficient implementation,” said Secretary Bernhardt. “An effectively administered Act ensures more resources can go where they will do the most good: on-the-ground conservation.”

“The revisions finalized with this rulemaking fit squarely within the President’s mandate of easing the regulatory burden on the American public, without sacrificing our species’ protection and recovery goals,” said U.S. Secretary of Commerce Wilbur Ross. “These changes were subject to a robust, transparent public process, during which we received significant public input that helped us finalize these rules.”

The changes finalized today by Interior’s U.S. Fish and Wildlife Service and Commerce’s National Marine Fisheries Service apply to ESA sections 4 and 7. Section 4, among other things, deals with adding species to or removing species from the Act’s protections and designating critical habitat; section 7 covers consultations with other federal agencies.

The ESA directs that determinations to add or remove a species from the lists of threatened or endangered species be based solely on the best available scientific and commercial information, and these will remain the only criteria on which listing determinations will be based. The regulations retain language stating, “The Secretary shall make a [listing] determination solely on the basis of the best scientific and commercial information regarding a species’ status.”

The revisions to the regulations clarify that the standards for delisting and reclassification of a species consider the same five statutory factors as the listing of a species in the first place. This requirement ensures that all species proposed for delisting or reclassification receive the same careful analysis to determine whether or not they meet the statutory definitions of a threatened or endangered species as is done for determining whether to add a species to the list.

While this administration recognizes the value of critical habitat as a conservation tool, in some cases, designation of critical habitat is not prudent. Revisions to the regulations identify a non-exhaustive list of such circumstances, but this will continue to be rare exceptions..."
Endangered Species Act