The Endangered Species Act: A New Avenue for Climate Change Litigation?

Abstract

Polar bears grace the cover of numerous wildlife calendars and magazines; they generate crowds at zoos and aquariums; they are popular stuffed animals; they even appear in soft drink commercials. Despite their fame, a time could come when polar bears no longer roam the Arctic. The cartoon above suggests that twenty years from now children will grow up in a world without this animal. While cartoons are intended to provoke laughter, the threat to the polar bear's existence is far from humorous, and the extinction of the polar bear could easily become a reality.

On January 9, 2007, the United States Fish and Wildlife Service ("FWS") published its proposed rule for listing the polar bear (ursus maritmus) as a threatened species under the Endangered Species Act ("ESA" or "Act"). The rule cites worldwide loss of sea ice, the polar bear's habitat, as the primary threat to this species. Less then a month later, on February 7, the Intergovernmental Panel on Climate Change ("IPCC") published the first of four parts of its Climate Change 2007 report, highlighting the causal link between human carbon dioxide emissions and climate change. In a press conference announcing the proposed listing of the polar bear, Secretary of the Interior Dirk Kempthorne expressed concern that polar bear "habitat may literally be melting," but continued to state that the "whole aspect of climate change is beyond the scope of the Endangered Species Act." However, when Dale Hale, the Director of the FWS, was asked whether the FWS saw global warming as the cause of melting sea ice, he responded "yes." Regardless of the FWS's stance on human contributions to global climate change, a warmer Earth threatens the polar bear's existence. Because global warming is causing the polar bear's decline, listing the species under the ESA remains a possible way to provide a cause of action against those emitting climate changing pollutants.

Since its enactment in 1973, the ESA has been labeled the "pit bull" of environmental statutes. Once a species is listed under the Act, it is afforded the broadest protection. The United States Supreme Court has found that the ESA provides for the protection and conservation of endangered species over competing human use of natural resources. A single listed species, even a three-inch fish, can permanently halt a billion dollar project. The teeth of the Act, together with recent scientific studies linking climate change to polar bear decline, and human activities to climate change, may provide a viable basis for a claim against actors, particularly carbon dioxide emitters, who modify polar bear habitat and harm the species.

This paper first addresses recent climate change litigation and proposes an ESA claim as an alternative. Part II discusses the history and purpose of the ESA and the proposed listing of the polar bear. Part Il addresses Section 9 of the ESA, which makes it unlawful for any person to "take" an endangered species, and focuses on "harm," a type of taking. This Section also includes a description of citizen suits and injunctions under the ESA. Part IV analyzes whether modification of the polar bear's habitat as a result of climate change constitutes a taking. This Part also evaluates the evidentiary hurdles in proving that climate change activities harm polar bears, such that these activities should be enjoined under the ESA.

Keywords: global warming, ESA, climate change, U.S. Fish and Wildlife Service, FWS, Endangered Species

JEL Classification: K10