Tag: endangered species act

Climate Adaptation for Non-Humans: The Role of Assisted Migration

Bull_Trout_RuhlBy Christine Zaleski—April 22 at 5:02 p.m.

On January 30, 2015, President Obama again demonstrated his willingness to tackle climate change issues using his executive authority, signing an Executive Order requiring new federal buildings constructed in floodplains to be built at higher elevations. This action is one of many that governments around the world have taken to adapt to the sea-level rise caused by climate change. While humans are adapting to sea-level rise by changing the elevation at which they live, many species lack such an option because natural and man-made obstacles prevent them from migrating to upland habitat. In the current issue of the Harvard Environmental Law Review, Jaclyn Lopez’s “Biodiversity on the Brink: the Role of ‘Assisted Migration’ in Managing Endangered Species Threatened with Rising Seas,” proposes several policy options to help species threatened with coastal inundation to migrate to safe habitats.

Squeezed between rising sea levels and human development, some endangered species are at risk of extinction, not for lack of available habitat, but for lack of accessible habitat. Migration corridors between existing at-risk habitat and available habitat elsewhere are scarce. Proponents of “assisted migration” would address this problem by helping populations of endangered and threatened species move to suitable habitat. Assisted migration can be accomplished either through active or passive assistance: humans can physically move plants and animals from threatened habitats to secure habitats, or humans can protect corridors of suitable habitat that permit the species themselves to migrate. Lopez recommends that the U.S. Fish & Wildlife Service (“FWS”) use existing authority under the Endangered Species Act to incorporate active assisted migration into species recovery plans and to integrate projections about sea-level rise into critical habitat designations. The FWS could and should designate some currently unoccupied habitat as “critical” in order to preserve corridors and alternative habitat for endangered species facing “coastal squeeze.” Lopez discusses the implications of her recommendations for four federally protected species from differing taxa, habitat types, and natural histories—the Florida panther, loggerhead sea turtle, Key tree-cactus, and Lower Keys marsh rabbit—to demonstrate the critical need for action to protect endangered and threatened species facing coastal squeeze.

To date, actions such as these, occurring wholly within the executive branch, have been the primary federal drivers of climate change mitigation and adaptation. The Executive Order President Obama signed in January amended Executive Order 11,988, signed by President Carter in 1977. The long legacy of Executive Order 11,988 is a testament to the durability of some executive actions. However, as President Obama’s actions demonstrate, executive orders and changes to agency policy are vulnerable to changes in the administration.

On January 30, 2015, the same day that President Obama signed the amendments to Executive Order 11,988, the New York Times reported that 74% of Americans believe that the federal government should be doing a “substantial amount” to combat climate change.[1] Perhaps this signals that the tide is turning and climate change policy may find support outside the executive branch, as it has among the American public. If that is true, these executive actions can become stepping-stones to less fragile, more comprehensive legislation.

[1] Coral Davenport & Marjorie Connelly, Most Republicans Say They Back Climate Change Action, Poll Finds, N.Y. Times, (Jan. 30, 2015).

The Endangered Species Act’s Fall From Grace in the Supreme Court

By J.B. Ruhl

Thirty-five years ago, the Endangered Species Act (“ESA”) had as auspicious a debut in the U.S. Supreme Court as any statute could hope for. In Tennessee Valley Authority v. Hill, a majority of the Court proclaimed that the ESA was intended “to halt and reverse the trend toward species extinction, whatever the cost” and backed up those and other bold words by preventing a nearly completed federal dam from impounding its reservoir because doing so would eliminate the only known (at the time) habitat of a small fish, the now infamous snail darter. To this day, Hill remains actively discussed in judicial opinions, on environmental lawyers’ short list of important cases, a mainstay of law school casebooks, and a lively focus of legal scholarship. As it turns out, however, Hill has become the extreme outlier in the Court’s ESA jurisprudence. In a series of four decisions spaced out from 1992 to 2007, two focusing on standing doctrine and two on statutory substance, the Court has silently but unmistakably eviscerated Hill, thereby knocking the ESA off its pedestal.

This Article is the first to examine the ESA’s remarkable fall from grace in the Court. It does so not only as a measure of where the ESA has traveled in the Court, but also more broadly to examine where environmental values and environmental law fit in the Court’s jurisprudence and what that suggests for the design of environmental law. Part I provides brief overviews of the ESA, the cases, and the Justices’ voting patterns to situate the Court’s four post-Hill decisions in their jurisprudential contexts. The body of the Article then moves through three lessons that Hill’s successors have to offer. Part II uses the ESA’s slow demise as a window into the Court’s environmental values perspective, using what has happened to the ESA to illuminate and evaluate various legal scholars’ theories of how the Court views the natural environment as a jurisprudential context. Part III argues that the driving causal agent behind the ESA’s decline has been the evolution of the statute’s implementation from a novelty in environmental law to a robust regulatory program. The evidence from the ESA’s fall from grace, therefore, is that while the Court has at times seemed apathetic to, confused about, or hostile to the environment, the better explanation for what has happened to the ESA is that the Court is skeptical about environmental law. Part IV thus closes by extracting what can be learned from the history of the ESA in the Court about the design of environmental laws, particularly those aimed at ecosystem protection and biodiversity conservation.

Cite as: J.B. Ruhl, The Endangered Species Act’s Fall From Grace in the Supreme Court, 36 Harv. Envtl. L. Rev. 487 (2012).

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Can the ESA Address the Threats of Atmospheric Nitrogen Deposition? Insights from the Case of the Bay Checkerspot Butterfly

By Zdravka Tzankova, Dena Vallano, & Erika Zavaleta

The Bay Checkerspot Butterfly reached its threatened status largely as a result of habitat loss through development. The species now benefits from the habitat protection powers of the Endangered Species Act, yet the biggest new hazard to the survival of remaining Bay Checkerspot Butterfly populations may come from atmospheric nitrogen deposition. Driven by combustion and agricultural emissions, such deposition is an important cause of change in ecosystem structure and function, including potentially critical changes in the remaining Bay Checkerspot Butterfly habitat. We use the Bay Checkerspot Butterfly case to examine whether the Endangered Species Act, as it currently stands, is capable of protecting endangered species from the newly appreciated, remote-origin threat of nitrogen deposition. We employ legal analysis that builds on relevant case law to determine whether the limitations
on harmful activities as set by sections 7 and 9 of the Endangered Species Act can be applied to the emissions that cause nitrogen deposition. As part of the analysis, we juxtapose our case with a similar case that has become quite salient in recent discussions of conservation law: the case for using the Endangered Species Act to help control greenhouse gas emissions.

Our findings leave us cautiously optimistic that the take and jeopardy prohibitions of the Endangered Species Act could be fruitfully leveraged against existing federal and state air quality and emission control programs to help improve the protection of nitrogen-sensitive species and ecosystems.

Cite as: Zdravka Tzankova et al., Can the ESA Address the Threats of Atmospheric Nitrogen Deposition? Insights from the Case of the Bay Checkerspot Butterfly, 35 Harv. Envtl. L. Rev. 433 (2011).

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