This week the 9th Circuit Court of Appeals issued a game-changing ruling strengthening the link between climate change projections and the listing of endangered species. The decision will affect the management of public and private lands. It will also transform future species’ listings, what constitutes best available science, and levels of scientific uncertainty acceptable in courtrooms.
On Monday, the justices upheld the National Marine Fisheries Service’s (NMFS) decision to list the Beringia Bearded Seal (Erignathus barbatus nauticus) as threatened under the Endangered Species Act (ESA). The underlying basis was not an immediate threat to the seal or even declining numbers. It rested on changes to sea ice (their habitat) that are projected to occur off Alaska as far out as 2095, and based on the International Panel on Climate Change (IPCC) models.
The Beringia Bearded Seal lives on patches of ice floes over shallow waters in the Bering and Chuckchi Sea. They use these habitats for feeding, breeding, nursing, molting and protection against predators. In 2008 the Center for Biological Diversity petitioned NMFS to list the seals under ESA citing global warming as the primary threat.
NMFS first set out to establish the importance of ice floes as essential to the survival of the seal, and which it did using observational studies and peer review. NMFS then turned to IPCC climate change models. These project that by 2050 between 80% and 100% of summer ice floes will have disappeared during the seals’ critical life phases. NMFS examined the projections from 2050 to 2095 which show all summer ice will be gone over most of the seals’ range. Models from 2050 forward are more volatile because they can’t account for unforeseen factors (e.g. technology or policy breakthroughs). Taking all these data into account and involving two round of peer-review, NMFS determined to list the seal as a threatened Distinct Population Segment under ESA.
The State of Alaska, Oil and Gas Interests, and Native Tribes challenged NMFS decision. The 9th circuit court in San Francisco affirmed NMFS listing on the basis that the Service had used the best science available and reasonably. The ESA, the justices noted, only requires best available science, not iron-clad science nor at a too high a standard. Despite the volatility of climate projections from 2050-2095 the court concluded that this doesn’t deprive them of use in rule making.
The justices made a comment that may freeze many in their tracks. “Although Plaintiffs framed their arguments as challenging the long-term climate projections they seek to undermine NMFS use of climate change projections as the basis for ESA listings.” The court was having none of this. Climate-change models and projections even with uncertainties, they find, constitute the best available science.
At the end of the day this case turned on one critical question- “When NMFS determines that a species that is not presently endangered will lose its habitat due to climate change by the end of the century, may NMFS list that species as threatened under the Endangered Species Act?”
The ninth circuit court has answered with a definitive “yes”.
A more in-depth analysis of the science can be found here.