The controversial intersection of climate change, arctic sea ice, and the Endangered Species Act (ESA) was at the core of a case decided by a panel of the U.S. Court of Appeals for the 9th Circuit. Energy associations, local governments on the North Slope of Alaska, the North Slope Inupiat Community, and the state of Alaska had challenged a 2012 final rule by the National Marine Fisheries Service (NMFS) that listed the distinct Beringia subspecies of the Pacific bearded seal as threatened because climate predictions indicated that warming temperatures would so reduce their critical habitat that the subspecies would become endangered by 2095.

A threatened-species listing under the ESA gives the federal government the authority to take a range of actions to protect the species and its critical habitat, including restricting or even prohibiting development of oil and gas resources. Plaintiffs alleged that NMFS’s listing of Beringia seals was not supported by the “best scientific and commercial data available,” as required by the ESA. In a summary judgment, a federal district court found for the plaintiffs, but the 9th Circuit panel reversed.

Critical life stages

In reviewing a 2008 petition from the Center for Biological Diversity to list the Beringia seal under the ESA, the NMFS first considered whether the loss of ice in the Bering and Barents Seas would threaten the subspecies’ viability. The NMFS determined that during critical life stages—including mating; birthing, nursing, and rearing of pups; access to food at the sea floor; and keeping a safe distance from predators—the seals needed continuous stretches of ice over shallow waters. These findings were confirmed by independent peer reviews.

The NMFS then evaluated several climate models to determine the magnitude and timing of the climate change’s impact on the availability of sea ice in areas inhabited by the Beringia seals. Specifically, the NMFS used observational and predictive data from the Intergovernmental Panel on Climate Change’s Fourth Assessment Report and six climate models to determine when the Beringia seal’s sea ice habitat would degrade to such an extent that it would render the seal endangered. Projections indicated that by 2095, sea ice in several regions where the seals whelp will have disappeared entirely during the April-through-June mating, nursing, and birthing season.

Speculation

Plaintiffs alleged that the listing decision did not meet ESA’s requirement for the best scientific and commercial data available; the population of seals was plentiful; a lack of reliable population data made it impossible to determine an extinction threshold; NMFS’s use of predictive climate projections beyond 2050 were speculative; the NMFS had unreasonably changed tack from its previous Arctic sea-ice listing decisions; and the NMFS had failed to demonstrate a causal connection between the loss of sea ice and the impact of that loss to the Beringia seals’ viability.

Best data available

In overturning the district court’s decision for the plaintiffs, the panel noted that the ESA does not require the NMFS to base its decision on ironclad evidence when it determines that a species is likely to become endangered in the foreseeable future; it simply requires the agency to consider the best and most reliable scientific and commercial data and to identify the limits of that data when making a listing determination.

“In light of the data available to it during the rulemaking process, NMFS reasonably concluded that there would be continued sea ice loss over shallow waters, resulting in habitat loss that would almost certainly threaten the Beringia seal’s survival,” stated the panel. “NMFS has provided a rational and reasonable basis for evaluating the bearded seal’s viability over 50 and 100 years, and it has candidly disclosed the limitations of the available data and its analysis. The ESA does not require more, and NMFS did not act arbitrarily or capriciously in concluding that the effects of global climate change on sea ice would endanger the Beringia seals in the foreseeable future.”

The panel added that the district court’s effort to impose requirements for which data is unavailable or does not exist is at odds with the ESA.

Alaska’s claim

Also, the panel rejected the state of Alaska’s contention that the NMFS failed to respond adequately to the state’s comments on the proposed listing. According to the panel, the NMFS met the relevant ESA requirement and responded adequately to Alaska’s comments both in the final listing rule and in a separate letter to the state.

The panel’s opinion in Alaska Oil and Gas Association et al. v. NMFS is here.