Safeguarding Endangered Species

Climate change has led to the near extinction of vulnerable species and the destruction of their habitats, according to the International Fund for Animal Welfare. Rising ocean temperatures have altered the migratory patterns of the North Atlantic right whale population leading them into areas frequented by humans. This shift heightens their risk of entanglement in fishing gear or colliding with boats.

The Endangered Species Act (ESA) outlines protective measures for wildlife that have been classified as either threatened or endangered by the U.S. Fish and Wildlife Service (FWS) and the U.S. National Oceanic and Atmospheric Administration (NOAA).

The FWS and NOAA safeguard vulnerable species by addressing individual cases of human-induced threats that have direct impacts on species. But the ESA is less effective in preventing a decline in animal populations and habitat destruction. Some species face multiple and compounding threats, complicating their protection under the ESA. For example, the polar bear faces habitat destruction caused by the cumulative effects of greenhouse gas emissions.

Some scholars claim that the ESA fails to address the dangers posed by increased carbon emissions. Instead, they suggest that FWS should advise and assist other agencies in crafting climate practices.

Other scholars propose a more expansive role for the ESA, which Congress could enable by adding new amendments and altering the existing criteria for the statute’s implementation. One scholar suggests an amendment that would encourage the use of evolutionary biology to predict species’ ability to adapt to the effects of climate change.

In this week’s Saturday Seminar, scholars analyze current agency implementations of the ESA and examine potential ways to protect wildlife against the threats posed by climate change.

• The ESA has halted the decline of many endangered species, practitioner Andrea Treece argues in a recent Duke Environmental Law & Policy Forum keynote address. Treece attributes the ESA’s success to features such as its clear, broad language and science-based decision-making approach which allow agencies to apply the statute to evolving threats and respond to new scientific evidence. Treece acknowledges, however, that obstacles remain—including the ESA’s focus on preventing extinction as opposed to promoting recovery.
• In a forthcoming article in the Florida International University Law Review, Jonathan H. Adler, a professor at Case Western Reserve University School of Law, argues that the ESA has not been an effective tool for conserving endangered species. Adler contends that the ESA can alienate landowners who might otherwise support conservation efforts by placing onerous restrictions on the use of private lands where endangered species live. These restrictions can reduce the economic value of land, incentivizing private landowners to avoid creating—and even to destroy—habitat for endangered species, Adler points out. He warns that this is an important conservation challenge as many endangered species rely on private lands for their survival.
• In an article in the Yale Journal on Regulation, Jessica Wentz of the Sabin Center for Climate Change Law at Columbia Law School examines the science of climate change detection under the ESA and how it manifests in the judiciary and federal decision making. Climate change attribution research is essential in determining whether to classify a species as threatened due to climate change and in assessing methods to support species recovery, Wentz argues. Wentz recommends rescinding amendments to the ESA that require “reasonable certainty” with respect to the benefits of habitat conservation, as these changes could impede agencies from classifying unoccupied ecosystems as critical habitats.
• Local adaptation is the process by which a species acquires traits that increase its chances of survival in its local environment, Mariah Meek of Michigan State University and several co-authors explain in an article in Biosience. Meek and her coauthors observe that scientists have increasingly integrated local adaptation into conservation work because, as a key feature of the evolutionary process, it helps generate and maintain biodiversity. The Meek team argues that incorporating local adaptation into conservation planning requires collaboration between the scientific community, policymakers, and regulatory agencies. In particular, Meek and her coauthors suggest that an effective regulatory scheme requires balancing the need for clear directives with the need for flexibility to preserve biodiversity under changing climate conditions.
• In a comment in the Columbia Law Review, recent Columbia Law School graduate Isabella Kendrick discusses how the ESA’s working definition of “habitats” can be broadened to increase federal agencies’ power to protect critical habitats from damage caused by climate change. Kendrick argues that the redefinition should take into account the “dynamic and temporally variable nature” of habitats. This definition would empower agencies to designate critical habitats using data from predictive modeling allowing for greater responsiveness in classifying and protecting future at-risk ecosystems. Kendrick also highlights procedural guidelines that allowed agencies to designate occupied and unoccupied habitat concurrently, granting more flexibility in identifying critically endangered ecosystems.
• In an article in the Yale Journal on Regulation, Robert L. Fischman and Vicky J. Meretsky of the Indiana University Maurer School of Law and Matthew Castelli of the S. Environmental Protection Agency suggest that the stringent protections of the ESA contradict the many opportunities it offers for collaborative regulation. Under a collaborative approach, ESA protective regulations could be made with private parties’ acquiescence to standards-based limitations on their activities in exchange for liability protections, Fischman and his coauthors argue. This approach increases buy-in and avoids tying enforcement to the outcomes of actions, which are difficult to predict and prove, the Fischman team points out. They conclude that the collaborative approach should be followed in future ESA regulations and other conservation statutes.