Why AOGA v. Pritzker Is a Big Deal


Bearded Seal (Photo One World Ocean)

Bearded Seal (Photo One World Ocean)

The Ninth Circuit Court of Appeals reversed Judge Beistline’s decision that the Pacific Bearded Seal was not an endangered species. The Court of Appeals found that Judge Beistline was wrong about pretty much everything.

The Paciifc Bearded Seal is a shallow ice-dependent species, breeding in the Chukchi Sea. Nursing females need to be able to quickly forage, and to do that they need sea ice, preferably seasonal ice, in relatively shallow waters, to serve as a platform from which to feed. The period critical to pup survival is April to June. And, of course, Arctic sea ice is vanishing in that critical period.

The National Marine Fishery Service, in response to a petition to have the Bearded Seal classified as endangered under the Endangered Species Act, went through the full review process and concluded that the Pacific Bearded Seal was in fact endangered. The part that was different about the determination was NMFS’s conclusion that over a longer term, even out as far as 2095, the situation would worsen. NMFS used widely accepted climate models to predict what would happen to the sea ice. And, for the Bearded Seals, it was catastrophic.

Judge Beistline rejected NMFS’s conclusions. The 9th Circuit overturned that decision and found that NMFS had it right, that the Pacific Bearded Seal was in fact properly classified as an endangered species.

It’s a big deal in several ways.

First, the decision endorses the idea that climate model projections can be a basis for an endangered species classification, even when projected out as far as 2095. Federal agencies are permitted to connect the climate dots. Because climate change is largely a gradual process, that’s a very big deal. The threat doesn’t have to be immediate, only likely.

Second, for the State of Alaska it means that any oil or gas development in the Chukchi Sea the Bearded Seal and, likely enough, the Ribbon Seal, will have to somehow take into account the endangered species classifications, as well as the Polar Bear. WC won’t say that makes such development impossible, but it’s going to make it very, very tough. The problem will be especially acute for near-shore exploration and development, because that’s the critical habitat.

Third, it suggests the moment when the Endangered Species Act will force regulation of greenhouse gas emissions. There may be means to slow the loss of Bearded Seal, Ribbon Seal and Polar Bear populations with other measures, but it’s hard to see what they are. The real solution has always been and remains preserving sea ice for these species. And that means reducing the emission of greenhouse gases, the engine that drives anthropogenic climate change.

What underscores all this is that it has turned out the climate models are wrong. They are turning out to be too conservative. Sea ice is melting about 30 years earlier than projected. The crisis is now, not 2095. WC has explained what happens under the Edangered Species Act following an “endangered” classification. It’s hard to see how a legally defensible, successful recovery plan for these species cannot include reduction in greenhouse gases. Which puts Alaska’s oil-based economy in the bulls-eye.

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