Climate change and the endangered species act: Building bridges to the no-analog future

Boston University Law Review

Volumn 88, Issue 1, 2008, Pages 1-62

  Ruhl, J B ^a  

^a FLORIDA STATE UNIVERSITY   (United States)

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EID: 41749106699     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (354)

1. The background on the pika in this paragraph is derived from Donald K. Grayson, A Brief History of Great Basin Pikas, 32 J. B IOGEOGRAPHY 2103 (2005), and Erik A. Beever et al., Patterns of Apparent Extirpation Among Isolated Populations of Pikas (Ochotona princeps) in the Great Basin, 84 J. MAMMALOGY 37 (2003). For numerous images of pikas in their montane habitat, enter "pika" in Google Images.
2. In this Article, I unapologetically adopt the premise that global climate change is occurring at anomalously rapid rates compared to historical trends, and that anthropogenic (human-induced) sources of greenhouse gases (primarily carbon dioxide) are a significant causal factor. I do not endeavor here to convince anyone of this. The Intergovernmental Panel on Climate Change (IPCC), an international scientific project representing hundreds of scientists, has produced a series of reports, including a comprehensive set in 2007, synthesizing scientific information on climate change and its effects on ecological conditions, all of which support the premises adopted herein. See, e.g., INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, SUMMARY FOR POLICYMAKERS, CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS, CONTRIBUTION OF WORKING GROUP I TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 2-5 (2007), available at http://www.ipcc.ch/pdf/assessment-report/ar4/ wgl/ar4-wgl-spm.pdf [hereinafter PHYSICAL SCIENCE BASIS SUMMARY]; INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, SUMMARY FOR POLICYMAKERS, CLIMATE CHANGE 2007: IMPACTS, ADAPTATION AND VULNERABILITY, CONTRIBUTION OF WORKING GROUP II TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 8-10 (2007), available at http://www.ipcc.ch/pdf/assessment-report/ar4/wg2/ar4-wg2-spm.pdf [hereinafter CLIMATE CHANGE IMPACTS SUMMARY] ; INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, SUMMARY FOR POLICYMAKERS, CLIMATE CHANGE 2007: MITIGATION, CONTRIBUTION OF WORKING GROUP III TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE passim (2007), available at http://www.ipcc.ch/pdf/assessmentreport/ar4/wg3/ar4-wg3-spm.pdf [hereinafter MITIGATION SUMMARY]; INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE AND BIODIVERSITY, IPCC TECHNICAL PAPER V, at 1 (2002), available at http://www.ipcc.ch/pdf/technicalpapers/climate-changes- biodiversity-en.pdf [hereinafter CLIMATE CHANGE AND BIODIVERSITY]. The IPCC recently summarized its work to date in INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007 SYNTHESIS REPORT: SUMMARY FOR POLICY MAKERS (2007), available at http://www.ipcc.ch/pdf/assessmentreport/ar4/syr/ar4_syr_spm.pdf [hereinafter 2007 SYNTHESIS REPORT SUMMARY] . To be sure, the IPCC reports recognize a substantial degree of uncertainty about climate change cause and effect in many respects, which I cover where relevant infra. There are also many sources of commentary about climate change taking positions contrary to those adopted in the IPCC reports and in this Article, suggesting that climate change is not occurring, or that if it is occurring, it is a natural and temporary cycle of climate variation. See, e.g., CD. IDSO & K.E. IDSO, CTR. FOR THE STUDY OF CARBON DIOXIDE & GLOBAL CHANGE, CARBON DIOXIDE AND GLOBAL WARMING: WHERE WE STAND ON THE ISSUE (1998), available at http://www.co2science.org/scripts/C02ScienceB2C/about/ position/globalwarming.jsp. On the other hand, there are also many scientists who believe the IPCC has been too cautious in communicating the potential severity of climate change and its effects.
3. See Chris Huntingford & Jason Lowe, "Overshoot" Scenarios and Climate Change, 316 SCIENCE 829, 830 (2007);
4. Richard A. Kerr, Pushing the Scary Side of Climate Change, 316 SCIENCE 1412, 1412 (2007). Being the product of international consensus, moreover, it is widely regarded that the assessments in the IPCC reports were "watered down." What the Climate Panel Didn 't Say, ENVTL. F., May-June 2007, at 20, 20. Ongoing research that the federal government's Climate Change Science Program (CCSP) conducts, as well as U.S. government involvement in the IPCC project, is covered at http://www.climatescience.gov (last visited Nov. 14, 2007).
5. See Enthusiasts Mailing List at Pika Works, http://www.pikaworks. com/services/enthusiasts.html (last visited Nov. 14, 2007).
6. See Grayson, supra note 1, at 2103.
7. Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 884 (codified as amended at 7 U.S.C. § 136 (2000), 16 U.S.C. §§ 1531-1544 (2000), and in other scattered sections of 16 U.S.C). The pika is not currently protected under the ESA. In October 2007, the Center for Biological Diversity petitioned the federal government to extend ESA protection to the pika on the basis of climate change impacts.
8. See Petition to List the American Pika (Ochotona Princeps) as Threatened or Endangered Under the Endangered Species Act, at 1 (Oct. 1, 2007), available at http://www.biologicaldiversity.org/species/mammals/ American_pika/pdfs/American-pika-federal-petition-10-01-2007.pdf.
9. See, e.g., Steven P. Quarles, The Pit Bull Goes to School, ENVTL. F., Sep.-Oct. 1998, at 55, 55 (discussing the origins of this reputation).
10. For additional historical context highlighting the Act's "overbearing statutory certainty," see generally Steven P. Quarles & Thomas R. Lundquist, The Pronounced Presence and Insistent Issues of the ESA, NAT. RESOURCES & ENV'T, Fall 2001, at 59.
11. This Article is not intended to provide a comprehensive overview of the ESA. Rather, it focuses on the manner in which global climate change will influence administration of the ESA. For comprehensive treatments of the ESA, several of which are referred to frequently infra, see generally MICHAEL J. BEAN & MELANIE J. ROWLAND, THE EVOLUTION OF NATIONAL WILDLIFE LAW (3d ed. 1997);
12. ENDANGERED SPECIES ACT: LAW, POLICY, AND PERSPECTIVES (Donald C. Baur & Wm. Robert Irvin eds., 2002) [hereinafter LAW, POLICY, AND PERSPECTIVES] ;
13. LAWRENCE R. LIEBESMAN & RAFE PETERSEN, ENDANGERED SPECIES DESKBOOK (2003);
14. STANFORD ENVTL. LAW SOC'Y, THE ENDANGERED SPECIES ACT (2001);
15. TONY A. SULLINS, ESA: ENDANGERED SPECIES ACT (2001);
16. THE ENDANGERED SPECIES ACT AT THIRTY: RENEWING THE CONSERVATION PROMISE: VOLUME 1 (Dale D. Goble et al. eds., 2006) [hereinafter THE ENDANGERED SPECIES ACT AT THIRTY] .
17. The National Oceanic and Atmospheric Administration's National Marine Fisheries Service (NMFS) (also known as NOAA-Fisheries) administers the ESA for most marine species and anadromous fish. My principal focus is on the FWS and terrestrial and freshwater species. What is observed in this Article about the ESA, however, applies equally to administration of the statute by the NMFS.
18. See U.S. Fish & Wildlife Serv., http://www.fws.gov/endangered/ (last visited Feb. 20, 2008) (describing the Endangered Species Program).
19. See J. Michael Scott et al., By the Numbers, in THE ENDANGERED SPECIES ACT AT THIRTY, supra note 7, at 16, 29-32.
20. Philip E. Hulme, Adapting to Climate Change: Is There Scope for Ecological Management in the Face of a Global Threat?, 42 J. APPLIED ECOLOGY 784, 784 (2005). In its 2007 Synthesis Report, the IPCC predicts that "[t]here is medium confidence that approximately 20-30% of species assessed so far are likely to be at increased risk of extinction if increases in global average warming exceed 1.5-2.5°C," and that if warming "exceeds about 3.5°C, model projections suggest significant extinctions (40-70% species assessed) around the globe." 2007 SYNTHESIS REPORT SUMMARY, supra note 2, at 13.
21. For extensive discussion of the basis of this assessment, see infra Part I.
22. See Endangered and Threatened Wildlife and Plants;
23. 12-Month Petition Finding and Proposed Rule To List the Polar Bear (Ursus maritimus) as Threatened Throughout Its Range, 72 Fed. Reg. 1064 (proposed Jan. 9, 2007) (to be codified at 50 C.F.R. pt. 17). The agency proposed the rule based on a citizen petition for rulemaking.
24. Also acting on a petition, the FWS recently initiated a status review of ten species of penguins based on threats, including climate change impacts. See Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List 12 Penguin Species as Threatened or Endangered Under the Endangered Species Act, 72 Fed. Reg. 37,695 (July 11, 2007). NMFS has identified several coral species for ESA protection based in part on the effects of global climate change.
25. See Endangered and Threatened Species: Final Listing Determinations for Elkhorn Coral and Staghorn Coral, 71 Fed. Reg. 26,852 (May 9, 2006).
26. See Appropriators Urge Interior to Deepen Review of How Global Warming is Affecting Species, 38 Env't Rep. (BNA) 1015, 1015 (2007).
27. Center for Biological Diversity, Petition for Rulemaking To Amend Federal Regulations To Enhance the Recovery of Endangered Species and Address the Growing Impacts of Global Warming on Imperiled Species, at 3 (Feb. 1, 2007), available at http://www.biologicaldiversity.org/swcbd/programs/bdes/gw- es/apa-petition.pdf [hereinafter Petition for Rulemaking];
28. see also Environmental Groups Seek Federal Action with Rules on Effects of Global Warming, 38 Env't Rep. (BNA) 308, 308 (2007) (announcing the filing of the Center for Biological Diversity's petition).
29. See Natural Res. Def. Council v. Kempthorne, 506 F. Supp. 2d 322, 370 (E.D. Cal. 2007) ("FWS acted arbitrarily and capriciously by failing to address the issue of climate change ....").
30. For further discussion, see infra text accompanying notes 228-29.
31. See Barton H. Thompson Jr., Managing the Working Landscape, in THE ENDANGERED SPECIES ACT AT THIRTY, supra note 7, at 101, 104 ("[ESA enforcement] has had the greatest impact on active changes in species habitat (e.g., the construction of new subdivisions, timber harvesting, and water diversions)...."). The seminal ESA case, and icon of preservationism in American environmental law, involved a dam. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 157 (1978). In that case the Court halted the construction of a nearly completed, federally financed dam project because the federal agencies involved had not complied with the ESA. Id. at 172-73. When asked to refuse to enjoin the construction as a matter of equity and common sense, the Court found that the ESA "admits of no exception" and "indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities." Id. at 173-74. The Court refused to "make such fine utilitarian calculations" given that "Congress viewed the value of endangered species as 'incalculable.'" Id. at 187.
32. See A. Dan Tarlock, The Dynamic Urban Landscape, in THE ENDANGERED SPECIES ACT AT THIRTY, supra note 7, at 127, 127-32;
33. Thompson, supra note 16, at 104-26.
34. ZYGMUNT J.B. PLATER ET AL., ENVIRONMENTAL LAW AND POLICY: NATURE, LAW, AND SOCIETY 783 (3d ed. 2004).
35. 16 U.S.C. § 1533(b)(3) (2000).
36. Id. § 1540(g).
37. For example, citizen petitions, frequently followed by citizen suits, have been a major force behind the identification of species for ESA protection. See D. Noah Greenwald et al., The Listing Record, in THE ENDANGERED SPECIES ACT AT THIRTY, supra note 7, at 51, 54-63.
38. See Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52,922, 52,922 (Sept. 8, 2003).
39. See id. at 52,929-31.
40. 127 S. Ct. 1438 (2007).
41. See id. at 1462-63.
42. For a concise yet thorough summary of the rulemaking petition, the EPA's decision, lower court proceedings, the Supreme Court's majority and dissenting opinions, and the likely impact of the case, see generally Arnold W. Reitze Jr., Controlling Greenhouse Gas Emissions From Mobile Sources - Massachusetts v. EPA, 37 Envtl. L. Rep. (Envtl. Law Inst.) 10,535 (2007).
43. For additional background, see generally Michael Sugar, Case Comment, Massachusetts v. Environmental Protection Agency, 31 HARV. ENVTL. L. REV. 531 (2007).
44. The majority opinion begins with the observation that "[a] well-documented rise in global temperatures has coincided with a significant increase in the concentration of carbon dioxide in the atmosphere. Respected scientists believe the two trends are related." Massachusetts, 127 S. Ct. at 1446. This basic factual assertion is accepted and extended throughout the opinion, leading one observer to suggest that "the broader cultural or symbolic significance of the decision" is that "[t]he Court has accepted - indeed has seemed to internalize - the beliefs, assumptions, and values that animate the environmentalists' views on climate change." Jonathan Z. Cannon, The Significance of Massachusetts v. EPA, 93 VA. L. REV. IN BRIEF 51, 59 (2007), http://www.virginialawreview.org/inbrief/ 2007/05/21/cannon.pdf. Indeed, the case is regarded as "[a] breathtaking result for environmentalists. The first time that environmentalists have both persuaded the Supreme Court to grant review over the federal government's opposition and then won on the merits." Richard Lazarus, A Breathtaking Result for Greens, ENVTL. F., May-June 2007, at 12, 12.
45. Massachusetts, 127 S. Ct. at 1459-60. The Clean Air Act defines "air pollutant" in sweeping terms to include "any air pollution agent.. . including any physical, chemical [or] biological... substance or matter which is emitted into or otherwise enters the ambient air." 42 U.S.C. § 7602(g) (2000). The Court found that "greenhouse gases fit well within [this] capacious definition." Massachusetts, 127 S. Ct. at 1462.
46. Massachusetts, 127 S. Ct. at 1462.
47. 42 U.S.C. § 7521(a)(1) (2000).
48. See Massachusetts, 127 S. Ct. at 1447 (quoting 42 U.S.C. § 7602(h)).
49. Id. at 1462-63.
50. Id. at 1462 (citation omitted). As its only example of a "reasonable explanation," the Court suggested that the EPA might find "the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming." Massachusetts, 127 S. Ct. at 1463. Yet, having previously observed that "respected scientists" believe greenhouse gases do contribute to climate change, the Court seems to have left EPA little wiggle room. Massachusetts, 127 S.Ct at 1446;
51. see Cannon, supra note 26, at 57;
52. Reitze, supra note 25, at 10,538.
53. For example, the Ninth Circuit recently faulted the National Highway Traffic Safety Administration for failing to take climate change effects into account when promulgating fuel economy standards for light trucks and SUVs. Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., No. 06-71891, 2007 WL 3378240, at *17-19 (9th Cir. Nov. 15, 2007). Also, several institutional investors recently petitioned the Securities and Exchange Commission to require companies to disclose more information and analysis of the financial risks they face from climate change effects and the regulation of greenhouse gas emissions. California Public Employees Retirement System et al., Petition for Interpretive Guidance on Climate Change Disclosure, at 2-3 (2007), available at http://www.sec.gov/rules/petitions/2007/petn4-547.pdf.
54. See Massachusetts, 127 S. Ct. at 1463 ("We need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA's actions in the event that it makes such a finding.").
55. This Article addresses the scope of agency discretion under existing statutory provisions. Although the Article examines potential rulemaking reforms within the scope of existing statutory authority, I neither suggest nor review proposed statutory reforms of the ESA or any other statute to respond to climate change.
56. Interplay of Climate and Currents Disrupts Marine Ecosystems, SCIENCEDAILY, Feb. 28, 2007, http://www.sciencedaily.com/ releases/2007/02/070218140507.htm.
57. See Douglas Fox, Back to the No-Analog Future?, 316 SCIENCE 823, 823 (2007);
58. Douglas Fox, When Worlds Collide, CONSERVATION, Jan.-Mar. 2007, at 28.
59. See Peter Cox & David Stephenson, A Changing Climate for Prediction, 317 SCIENCE 207, 207 (2007).
60. For more on these modeling difficulties, see infra Part I.A.
61. It also provides an example of what regulatory programs dealing with human social and economic institutions can expect in a climate-change future. Like ecosystems, one can foresee human communities and economies responding in "reshuffling" patterns that defy extrapolation from historical trends and for which models are, at present, theoretical at best. If, for example, climate change shifts agriculturally productive conditions northward from, say, Kansas, how likely is it that agricultural communities in Kansas will simply pick up and relocate northward fully intact? Consider, for example, the diaspora of New Orleanians that followed Hurricane Katrina. Of over 1.3 million applicants for federal assistance, eighty-six percent came from people who had relocated to Louisiana, Mississippi, Texas, and Alabama, but applications came from every state and from more than 35,000 families that had moved over 1000 miles from the Gulf. See Katrina's Diaspora, http://www.nytimes.com/imagepages/2005/10/02/national/nationalspecial/ 20051002diaspora_graphic.html (last visited Jan. 12, 2008) (showing the results of a New York Times investigation of the distribution of Hurricane Katrina victims). Over half of the applications were filed by people that had relocated over 100 miles from New Orleans.
62. See id.
63. The examples given define the history of ESA implementation. See J. Michael Scott et al., Introduction to THE ENDANGERED SPECIES ACT AT THIRTY, supra note 7, at 3, 3 (characterizing the ESA as a legislative attempt to "reconcile the preservation of nature with increasing human population and consumption").
64. See Richard A. Kerr, How Urgent Is Climate Change?, 318 SCIENCE 1230, 1230 (2007) ("The system has built in time lags. Ice sheets take centuries to melt after a warming. The atmosphere takes decades to be warmed by today's greenhouse gas emissions.").
65. Until recently, legal scholarship on climate change has focused primarily on mitigation efforts - i.e., legal measures aimed at reducing greenhouse gas emissions. Given the reality that climate change will continue for some time even if stiff measures are taken globally to reduce greenhouse gas emissions over the next 25-50 years, attention is turning to the law of climate change adaptation - i.e., regulation and facilitation of human responses to climate change. For a sweeping overview of many of the environmental law issues relating to climate change adaptation (though not including the ESA issues in detail), see generally Matthew D. Zinn, Adapting to Climate Change: Environmental Law in a Warmer World, 34 ECOLOGY L.Q. 61 (2007).
66. As the majority in Massachusetts v. EPA observed, "[a]gencies, like legislatures, do not generally resolve massive problems in one fell swoop, but instead whittle away over time, refining their approach as circumstances change and they develop a more nuanced understanding of how best to proceed." Massachusetts v. EPA, 127 S. Ct. 1438, 1457 (2007) (citations omitted).
67. 16 U.S.C. § 1522(a)(1) (2000).
68. For a description of the listing process, see generally LIEBESMAN & PETERSEN, supra note 7, at 15-20;
69. STANFORD ENVTL. LAW SOC'Y, supra note 7, at 38-58;
70. SULLINS, supra note 7, at 11-25;
71. J.B. Ruhl, Section 4 of the ESA: The Keystone of Species Protection Law, in LAW, POLICY, AND PERSPECTIVES, supra note 7, at 19, 19-33;
72. infra notes 120-30 and accompanying text.
73. 16 U.S.C. § 1533(a)(3) (2000).
74. For a description of the critical habitat designation process, see generally LIEBESMAN & PETERSEN, supra note 7, at 20-24;
75. STANFORD ENVTL. LAW SOC'Y, supra note 7, at 59-69;
76. SULLINS, supra note 7, at 26-28;
77. Federico Cheever, Endangered Species Act: Critical Habitat, in LAW, POLICY, AND PERSPECTIVES, supra note 7, at 47;
78. Murray D. Feldman & Michael J. Brennan, The Growing Importance of Critical Habitat for Species Conservation, 16 NAT. RESOURCES & ENV'T 88 (2001);
79. infra notes 131-39 and accompanying text.
80. 16 U.S.C. § 1533(f) (2000).
81. For a description of the recovery plan process, see generally LIEBESMAN & PETERSEN, supra note 7, at 24-26;
82. STANFORD ENVTL. LAW SOC'Y, supra note 7, at 71-77;
83. SULLINS, supra note 7, at 34-37;
84. John M. Volkman, Recovery Planning, in LAW, POLICY, AND PERSPECTIVES, supra note 7, at 71;
85. infra notes 140-47 and accompanying text.
86. 16 U.S.C. § 1536(a)(2) (2000).
87. For a description of the consultation process, see generally LIEBESMAN & PETERSEN, supra note 7, at 27-39;
88. STANFORD ENVTL. LAW SOC'Y, supra note 7, at 83-103;
89. SULLINS, supra note 7, at 59-86;
90. Marilyn Averill, Protecting Species Through Interagency Cooperation, in LAW, POLICY, AND PERSPECTIVES, supra note 7, at 87;
91. infra notes 169-91 and accompanying text.
92. 16 U.S.C. § 1538(a)(1) (2000).
93. For a description of the cases developing the legal standards for what constitutes "take," see generally LIEBESMAN & PETERSEN, supra note 7, at 39-46;
94. STANFORD ENVTL. LAW SOC'Y, supra note 7, at 104-12;
95. SULLINS, supra note 7, at 44-54;
96. Alan M. Glen & Craig M. Douglas, Taking Species: Difficult Questions of Proximity and Degree, 16 NAT. RESOURCES & ENV'T 65 (2001);
97. Gina Guy, Take Prohibitions and Section 9, in LAW, POLICY, AND PERSPECTIVES, supra note 7, at 191;
98. Steven P. Quarles & Thomas R. Lundquist, When Do Land Use Activities "Take" Listed Wildlife Under ESA Section 9 and the "Harm" Regulation?, in LAW, POLICY, AND PERSPECTIVES, supra note 7, at 207;
99. infra notes 148-68 and accompanying text.
100. 16 U.S.C. § 1536(b)(4) (2000).
101. Id. § 1539(a)(1).
102. "Incidental take," although not explicitly defined in a specific statutory provision, is described in section 10 of the statute as take that is "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." Id. § 1539(a)(1)(B). The FWS has adopted this meaning in regulations implementing section 7's incidental take authorization. 50 C.F.R. § 402.02 (2003).
103. For a description of the incidental take authorization procedures, see generally LIEBESMAN & PETERSEN, supra note 7, at 46-50;
104. STANFORD ENVTL. LAW SOC'Y, supra note 7, at 127-73;
105. SULLINS, supra note 7, at 87-102;
106. infra notes 192-202 and accompanying text.
107. These are the factors upon which listing decisions are made. See 16 U.S.C. § 1533(a)(1)(A)-(E)(2000).
108. See David Wilcove et al., Quantifying Threats to Imperiled Species in the United States, 48 BIOSCIENCE 607, 609 (1998).
109. Indeed, this is the source of the statute's "pit bull" status and largely the reason it is so controversial - discrete actions directly impairing the habitat of protected species make for easy targets of ESA regulation. See Glen & Douglas, supra note 48, at 68 (discussing the proof and causation requirements necessary to demonstrate harm).
110. See Wilcove et al., supra note 53, at 609.
111. See Peter M. Vitousek et al., Biological Invasions as Global Environmental Change, 84 AM. SCIENTIST 468, 472-77 (1996).
112. For a series of articles covering the invasive species issue comprehensively, see generally Special Section: Population Biology of Invasive Species, 17 CONSERVATION BIOLOGY 24-92 (2003).
113. One exception is ship ballast water discharges, which have been a remarkably effective means of transporting aquatic species around the globe and have thus become a subject of regulatory interest.
114. See Sandra B. Zellmer, The Virtues of "Command and Control" Regulation: Barring Exotic Species from Aquatic Ecosystems, 2000 U. ILL. L. REV. 1233, 1234. The United States Coast Guard adopted regulations covering ballast water discharges in 2004.
115. See 33 C.F.R. §§ 151.1500-.1518, 151.2000-.2065 (2007).
116. The FWS cannot regulate developing nations such as China, which has become the world's leading source of greenhouse gas emissions and has shown only tentative interest in self-imposed or internationally-imposed emission limits. See Kathleen E. McLaughlin, China, Report Says Country Has Already Overtaken U.S. as Leading Source of Carbon Emissions, 38 Env't Rep. (BNA) 1429, 1429 (June 29, 2007);
117. Daniel Pruzin, China, Country 'Will Not Accept' Emissions Limits; Government Advisor Cites Insufficient Data, 38 Env't Rep. (BNA) 1515, 1515 (July 13, 2007);
118. Hou Yanli & Hu Min, China and Her Coal, WORLDWATCH, Jan.-Feb. 2007, at 14, 14.
119. For example, following California's lead, in 2007 Florida Governor Charlie Crist signed executive orders directing the adoption of maximum emission levels of greenhouse gases for electric utilities. See State of Florida, Office of the Governor, Exec. Order 07-127 (July 13, 2007), available at http://www.myfloridaclimate.com/news/article/34. The standard will require a reduction of emissions to 2000 levels by 2017, to 1990 levels by 2025, and to 80 percent of 1990 levels by 2050. Id. Florida will also adopt the California motor vehicle emission standards, pending EPA approval of a waiver from federal standards, imposing a 22-percent reduction in vehicle emissions by 2012 and a 30-percent reduction by 2016. Id.
120. For summaries of other proposed and adopted federal and state benchmarks, see generally Stephen C. Jones & Paul R. McIntyre, Filling the Vacuum: State and Regional Climate Change Initiatives, 38 Env't Rep. (BNA) 1640 (2007);
121. Pew Ctr. on Global Climate Change, A Look at Emissions Targets, http://www.pewclimate.org/what_s_being_done/targets (last visited Nov. 16, 2007). Many observers believe these benchmarks are unrealistic. See, e.g., Robert N. Stavins, Free GHG Cuts: Too Good To Be True?, ENVTL. F., May-June 2007, at 16, 16 (asserting that the cost estimates California is providing for its benchmark goals are wildly low).
122. See IPCC, CLIMATE CHANGE IMPACTS SUMMARY, supra note 2, at 19 ("Past emissions are estimated to involve some unavoidable warming .. . even if atmospheric greenhouse gas concentrations remain at 2000 levels."). Of course, if one believes that climate change is a purely natural phenomenon, then presumably it will continue for some period - perhaps a very long period - regardless of emission reductions.
123. See Stefan Rahmstorf et al., Recent Climate Observations Compared to Projections, 316 SCIENCE 709, 709 (2007).
124. This causal chain as well as other primary and secondary drivers, both natural and anthropogenic, are covered in PHYSICAL SCIENCE BASIS SUMMARY, supra note 2, at 10-17. Although much attention has been focused on ice sheet calving and melting, melting of glacial ice appears to be contributing about sixty percent of the "new water" component of sea level rise.
125. See Mark F. Meier et al., Glaciers Dominate Eustatic Sea-Level Rise in the 21st Century, 317 SCIENCE 1064, 1064 (2007).
126. See Rahmstorf et al., supra note 61, at 709. Given the complexity of the problem, it is no surprise that climate change effects models are proving difficult to calibrate. Even when climate change has not been a factor, reliable models using weather forecast variables to predict the secondary effects of annual weather patterns on other phenomenon have proven elusive. One recent study showed, for example, that river-level forecasting using annual weather forecast variables is at best moderately accurate only three days into the future.
127. See Richard A. Kerr, River-Level Forecasting Shows No Detectable Progress in 2 Decades, 316 SCIENCE 1555, 1555(2007).
128. See Doug M. Smith et al., Improved Surface Temperature Prediction for the Coming Decade from a Global Climate Model, 317 SCIENCE 796, 796 (2007) (concluding that natural cooling trends that have been offsetting human-induced warming will die out by 2009, giving way to untempered human-induced warming);
129. see also Richard A. Kerr, Humans and Nature Duel Over the Next Decade's Climate, 317 SCIENCE 746, 747 (2007) (explaining the difficulty, but necessity, of building climate change models that take into account human-induced and natural climate variation causes).
130. Climatologists refer to phenomena that have a discernable effect on climate as "forcings." See, e.g., 2007 SYNTHESIS REPORT SUMMARY, supra note 2, at 5.
131. See Another Global Warming Icon Comes Under Attack, 317 SCIENCE 28, 28 (2007) (explaining that because "[a]erosols cool the planet by reflecting away sunlight and increasing the reflectivity of the clouds," climate change models can vary widely depending on assumptions about aerosol levels).
132. See K.M. Walter et al., Methane Bubbling from Siberian Thaw Lakes as a Positive Feedback to Climate Warming, 443 NATURE 71, 71 (2006). The effect leads to a positive feedback loop in the following manner: as the greenhouse gases are released, they contribute to warming that melts the tundra faster, which releases more greenhouse gases more rapidly, and so on.
133. See Katey M. Walter et al., Methane Bubbling from Northern Lakes: Present and Future Contributions to the Global Methane Budget, 365 PHILOSOPHICAL TRANSACTIONS OF THE ROYAL SOC'Y A 1657, 1671 (2007). This effect is believed to have played a significant role in the last deglaciation.
134. 4 During the Last Deglaciation, 318 SCIENCE 633, 633 (2007).
135. See J.T. Randerson et al., The Impact of Boreal Forest Fire on Climate Warming, 314 SCIENCE 1130, 1130 (2006) ("Although changes in boreal forest albedo can have a considerable cooling effect on Northern Hemisphere climate, these changes are offset by carbon accumulation, so the net effect... on climate change may be close to neutral...." (citations omitted)).
136. See K. Van Oost et al., The Impact of Agricultural Soil Erosion on the Global Carbon Cycle, 318 SCIENCE 626, 626 (2007).
137. These and others are discussed in PHYSICAL SCIENCE BASIS SUMMARY, supra note 2, at 10-17.
138. At the global level, one significant limitation for modeling projection accuracy is the obvious fact that we have no experience with a global climate operating at temperatures like those predicted. In short, "once the world has warmed by 4°C, conditions will be so different from anything we can observe today (and still more different from the last ice age) that it is inherently hard to say when the warming will stop." Myles R. Allen & David J. Frame, Call Off the Quest, 318 SCIENCE 582, 582 (2007).
139. Gerard H. Roe & Marcie B. Baker, Why Is Climate Sensitivity So Unpredictable?, 318 SCIENCE 629, 629 (2007).
140. Id. at 632. But see M.D. Meyers et al., USGS Goals for the Coming Decade, 318 SCIENCE 200, 200 (2007) (expressing optimism that the USGS "will increase its capacity to provide output from predictive and empirical models for managers to test adaptive strategies, to reduce risk, and to increase the potential for hydrological and ecological systems to be self-sustaining, resilient, or adaptable to climate change and related disturbances").
141. Climate and Land Use Change Effects on Ecological Resources in Three Watersheds: A Synthesis Report, 72 Fed. Reg. 45,045, 45,046 (Aug. 10, 2007) (notice of public comment period).
142. See, e.g., Frank J. Wentz et al., How Much More Rain Will Global Warming Bring?, 317 SCIENCE 233, 233 (2007). The difficulties associated with downscaling global climate change to local secondary effects are relevant, of course, not only to legal responses to threats posed to species, but to threats posed to human populations as well.
143. See Robert L. Glicksman, Global Climate Change and the Risks to Coastal Areas from Hurricanes and Rising Sea Levels: The Costs of Doing Nothing, 52 LOY. L. REV. 1127, 1128 (2006).
144. Endangered and Threatened Wildlife and Plants; 12-Month Petition Finding and Proposed Rule To List the Polar Bear as Threatened Throughout Its Range, 72 Fed. Reg. 1064, 1071 (proposed Jan 9, 2007) (to be codified at 50 C.F.R. pt. 17). Indeed, the degree to which projections were off appears to be considerable - we are approximately thirty years ahead of what models forecasted losses would have been by 2006.
145. See Julienne Stroeve et al., Arctic Sea Ice Decline: Faster than Forecast, 34 GEOPHYSICAL RESEARCH LETTERS L09501, at 4-5 (2007). Part of the problem is the lack of understanding about how human-induced and natural processes interact, with "models probably lack[ing] some realistic feedbacks, natural processes that can amplify a climactic nudge - whether natural or humanmade - into a shove." Richard A. Kerr, Is Battered Arctic Sea Ice Down for the Count?, 318 SCIENCE 33, 33 (2007). In an effort to bring the models up to date with observations in order to assist the FWS in its polar bear assessment, in 2007 the U.S. Geological Survey screened all models that failed to predict within twenty percent of the 2006 September sea ice extent of the Arctic and projected future trends based on the remaining models.
146. See ERIC DEWEAVER, U.S. GEOLOGICAL SURVEY, UNCERTAINTY IN CLIMATE MODEL PROJECTIONS OF ARCTIC SEA ICE DECLINE: AN EVALUATION RELEVANT TO POLAR BEARS 1 (2007). Using only the models that satisfied
147. See U.S. GEOLOGICAL SURVEY, USGS SCIENCE TO INFORM U.S. FISH & WILDLIFE SERVICE DECISION MAKING ON POLAR BEARS, EXECUTIVE SUMMARY 2 (2007). The full set of USGS reports is available at U.S. Geological Survey, New Polar Bear Finding, http://www.usgs.gov/newsroom/special/polar%5Fbears/ (last visited Feb. 20, 2008).
148. See U.S. CLIMATE CHANGE SCIENCE PROGRAM, CCSP SYNTHESIS AND ASSESSMENT REPORT 3.1, CLIMATE MODELS: AN ASSESSMENT OF STRENGTHS AND LIMITATIONS FOR USER APPLICATIONS, PUBLIC REVIEW DRAFT 70-71 (2007) (describing problems with existing capacities for downscaling).
149. U.S. CLIMATE CHANGE SCIENCE PROGRAM, CCSP SYNTHESIS AND ASSESSMENT PRODUCT 4.2, PROSPECTUS FOR THRESHOLDS OF CHANGE IN ECOSYSTEMS 1-2 (2007) (describing the scope of research to be conducted on ecological downscaling models). It is, of course, equally as important to study and understand macroecological effects.
150. See Jeremy T. Kerr et al., The Macroecological Contribution to Global Change Solutions, 316 SCIENCE 1581, 1581(2007).
151. For a comprehensive treatment of disequilibrium and resilience theories of ecosystem dynamics, see generally PANARCHY: UNDERSTANDING TRANSFORMATION IN HUMAN AND NATURAL SYSTEMS (Lance H. Gunderson & C.S. Holling eds., 2002).
152. See CLIMATE CHANGE IMPACTS SUMMARY, supra note 2, at 8 ("The resilience of many ecosystems is likely to be exceeded this century by an unprecedented combination of climate change, associated disturbances (e.g., flooding, drought, wildfire, insects, ocean acidification), and other global change drivers (e.g., land-use change, pollution, over-exploitation of resources).").
153. Fox, supra note 37, at 823.
154. Interplay of Climate and Currents Disrupts Marine Ecosystems, supra note 36.
155. Id.
156. Id. (quoting Bill Peterson of NOAA). The U.S. Climate Change Science Program is, as of this writing, working to complete a comprehensive overview of ecological responses and adaptations to climate change, known as Synthesis and Assessment Product 4.4: Preliminary Review of Adaptation Options for Climate-Sensitive Ecosystems and Resources. See 72 Fed. Reg. 46,610, 46,610 (Aug. 21, 2007) (notice of availability of draft report and request for public comments).
157. See Hans O. Portner & Rainer Knust, Climate Change Affects Marine Fishes Through the Oxygen Limitation of Thermal Tolerance, 315 SCIENCE 95, 95 (2007).
158. See Ransom A. Myers et al., Cascading Effects of the Loss of Apex Predatory Sharks from a Coastal Ocean, 315 SCIENCE 1846, 1846 (2007).
159. All of the impact categories covered in my typology have been discussed to one extent or another in scientific literature. See, e.g., CLIMATE CHANGE AND BIODIVERSITY, supra note 2, at 16-23. My arrangement of them is designed to coincide with the legal analysis of the ESA covered infra Parts II-IV.
160. Of course, humans have the option of moving pikas to new locations. I take up the issue of "assisted migration" below. See infra Part III.D.2.
161. See, e.g., CLIMATE CHANGE AND BIODIVERSITY, supra note 2, at 22.
162. See, e.g., id. at 17-18.
163. See, e.g., id. at 12.
164. See, e.g., id. at 13-14.
165. See, e.g., id. at 17.
166. The reintroduction of wolves into Yellowstone illustrates the effects that can be expected from successful migrations. Researchers believe that the wolves, by preying on elk, have set in motion a series of ecological adjustments leading to rejuvenation of aspen stands. In the absence of their natural predator, the grazing elk were suppressing aspen regeneration; whereas, the introduced wolves have not only reduced elk numbers but also have deterred them from entering aspen stands where they are easy targets. See Virginia Morell, Aspens Return to Yellowstone, with Help from Some Wolves, 317 SCIENCE 438, 438 (2007).
167. See, e.g., CLIMATE CHANGE AND BIODIVERSITY, supra note 2, at 16-17.
168. An example already observed is the expansion of the giant Humboldt squid into the coastal waters of central California. Previously known in that area only during periodic El Nino events, which allowed them to ride warm water currents northward from Mexico for temporary foraging on hake, the squid have permanently taken residence as warmer water temperatures present the necessary ecological conditions. See Louis D. Zeidberg & Bruce H. Robinson, Invasive Range Expansion by the Humboldt Squid, Dosisicus gigas, in the Eastern North Pacific, 104 PROC. OF THE NAT'L ACAD.OF SCI. 12,948, 12,949-50(2007).
169. See 2007 SYNTHESIS REPORT SUMMARY, supra note 2, at 15.
170. See Norman Meyers, Environmental Refuges in a Globally Warmed World, 43 BIOSCIENCE 152 passim (1993).
171. See CLIMATE CHANGE AND BIODIVERSITY, supra note 2, at 3-4.
172. See id. at 42-43.
173. See id. at 43.
174. See id. at 36.
175. The EPA has suggested that "important progress has been made in identifying climate change effects on invasive species, but... our understanding of effects on specific species and interactions of other stressors needs to be improved." Effects of Climate Change on Aquatic Invasive Species and Implications for Management and Research, 72 Fed. Reg. 45,046, 45,047 (Aug 10, 2007) (notice of availability of research report and public comment period). Most invasive species introductions are human-induced. See Vitousek et al., supra note 56, at 468.
176. CLIMATE CHANGE IMPACTS SUMMARY, supra note 2, at 11.
177. Donald Kennedy, Mixed Messages About Climate, 317 SCIENCE 169, 169 (2007) (quoting Michael Griffin from radio interview with National Public Radio, the transcript of which is available at NPR, NASA Administrator Michael Griffin Not Sure that Global Warming is a Problem, http://www.npr.org/ about/press/2007/053107.griffinaudio.html (last visited Jan. 12, 2008)).
178. Id.
179. Lara Hanson & Christopher R. Pyke, Climate Change and Federal Environmental Law, SUSTAINABLE DEV. L. & POL'Y, Winter 2007, at 26, 27.
180. 16 U.S.C. § 1531(b) (2000).
181. Id. § 1531(c)(2).
182. Id. § 1533(b)(2) (2000 & Supp. 2005).
183. For an overview of the pressures the FWS has faced in this respect, including demands on the one hand that it be more "precautionary" and on the other hand that it be more "scientific," see generally J.B. Ruhl, The Battle Over Endangered Species Act Methodology, 34 ENVTL. L. 555 (2004) [hereinafter Ruhl, Methodology].
184. For comprehensive and thoughtful "insider" accounts of the fate of the ESA in this period, see generally John D. Leshy, The Babbitt Legacy at the Department of Interior: A Preliminary View, 31 ENVTL. L. 199 (2001), and Joseph L. Sax, Environmental Law at the Turn of the Century; A Reportorial Fragment of Contemporary History, 88 CAL. L. REV. 2375 (2000).
185. See, e.g., Endangered and Threatened Wildlife and Plants: Notice of Interagency Cooperative Policy Regarding the Role of State Agencies in Endangered Species Act Activities, 59 Fed. Reg. 34,274, 34,275 (July 1, 1994) (emphasizing the role states play in species conservation);
186. George Frampton, Ecosystem Management in the Clinton Administration, 7 DUKE ENVTL. L. & POL'Y F. 39 passim (1996) (presenting various policies that, in the view of one DOI official, changed the regulatory system "into a strategy that sparks regional multi-species ecosystem planning").
187. See J.B. Ruhl, Who Needs Congress? An Agenda for Administrative Reform of the Endangered Species Act, 6 NYU ENVTL. L.J. 367, 388-400 (1998) (providing a cotemporaneous survey of policies serving this purpose).
188. For a retrospective summary of the full effect of the Babbitt-era reforms, see J.B. Ruhl, Endangered Species Act Innovations in the Post-Babbittonian Era - Are There Any?, 14 DUKE ENVTL. L. & POL'Y F. 419, 430-34 (2004).
189. Once again, an insider's account provides a thoughtful perspective on the strategic approach the Babbitt administration took. See Leshy, supra note 111, at 212-14.
190. Some environmental advocacy groups have made no bones about their intention to pursue litigation forcing the FWS and NMFS to regulate greenhouse gases in order to protect climate-threatened species and their designated critical habitat areas. For example, the Center for Biological Diversity believes that the designation of critical habitat for several species of climate-threatened corals "actually moves the entire Endangered Species Act [ESA] onto a firm legal foundation for challenging global-warming pollution." See Mark Clayton, New Tool To Fight Global Warming: Endangered Species Act?, CHRISTIAN SCIENCE MONITOR, Sept. 7, 2007, at USA 3 (quoting Kieran Suckling, Policy Dir., Ctr. for Biological Diversity), available at http://www.csmonitor.com/ 2007/0907/p03s03-usgn.html.
191. 16 U.S.C. § 1531(b) (2000).
192. Obviously, species naturally compete with one another, such as for habitat and food, or in conflict as predator and prey. There are also a number of examples in which conservation measures taken to benefit a species protected under the ESA pose adverse effects for other species protected under the ESA or for other species generally. See NAT'L RESEARCH COUNCIL, SCIENCE AND THE ENDANGERED SPECIES ACT 111-23 (1995).
193. For a detailed case study of such a conflict in its legal context, see generally William W. Kinsey, Zalaphus (Sea Lion) and Oncorhynchus (Salmon/Steelhead): Protected Predator Versus Protected Prey, NAT. RESOURCES & ENV'T, Fall 2007, at 36.
194. See Petition for Rulemaking, supra note 14, at 3 (emphasis added).
195. 16 U.S.C. § 1533(a)(1) (2000). The statute also requires the director of the FWS to "make determinations required by subsection (a)(1) of this section solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species." Id. § 1533(b)(1)(a).
196. For a discussion of the "best scientific data available" standard, see infra Part III.E.
197. 16 U.S.C. § 1532(6) (2000).
198. Id. § 1532(20).
199. Defenders of Wildlife v. Norton, 258 F.3d 1136,1141 (9th Cir. 2001).
200. Memorandum from Solicitor, U.S. Dep't of the Interior, to Director, U.S. Fish and Wildlife Serv., The Meaning of "In Danger of Extinction Throughout All or a Significant Portion of its Range" (Mar. 16, 2007).
201. For example, unlike its conclusions thus far for the polar bear and penguins, the agency was unconvinced that the American eel is endangered as a result of the effects climate change has had on ocean conditions, notwithstanding ample evidence that the effects are real and posing imminent threats to the species. Compare Endangered and Threatened Wildlife and Plants; 12-Month Finding on a Petition To List the American Eel as Threatened or Endangered, 72 Fed. Reg. 4967, 4995 (Feb. 2, 2007) (rejecting a listing petition "because oceanic conditions are within normal variations [and] the American eel is evolutionarily adapted to oceanic variations"), with Thierry Wirth & Louis Bernatchez, Decline of North Atlantic Eels: A Fatal Synergy?, 270 PROC. OF THE ROYAL SOC'Y OF LONDON 681, 681 (2003) (compiling evidence of threats from changing oceanic conditions associated with climate change).
202. 16 U.S.C. § 1533(d) (2000).
203. See Madeline June Kass, Threatened Extinction of Plain Vanilla 4(d) Rules, 16 NAT. RESOURCES & ENV'T 78, 78-79 (2001).
204. See id. at 79-81.
205. See Endangered and Threatened Wildlife and Plants; 12-Month Petition Finding and Proposed Rule To List the Polar Bear (Ursus maritimus) as Threatened Throughout Its Range, 72 Fed. Reg. 1064, 1097 (proposed Jan. 9, 2007) (to be codified at 50 C.F.R. pt. 17). NMFS took this approach when it listed two coral species as threatened, in part due to climate change effects, and noted that it would evaluate "the necessity and advisability of proposing protective regulations pursuant to section 4(d) of the ESA for these two coral species." Endangered and Threatened Species: Final Listing Determinations for Elkhorn Coral and Staghorn Coral, 71 Fed. Reg. 26,852, 26,859 (May 9, 2006) (to be codified at 50 C.F.R. pt. 223);
206. see also Robin Kundis Craig, Acropoa spp.: Water Flow, Water Quality, and Threatened Corals, NAT. RESOURCES & ENV'T, Fall 2007, at 8, 9.
207. Kass, supra note 127, at 133.
208. 16 U.S.C. § 1533(a)(3)(A).
209. Id. § 1532(5)(A).
210. See Feldman & Brennan, supra note 45, at 88. The wave of litigation has become so intense and costly that the FWS has described it as having nothing short of debilitating effects on the agency's ability to carry out its conservation mission. The agency has long believed that, "in most circumstances, the designation of 'official' critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources," and "that the present system for determining and designating critical habitat is not working." Endangered and Threatened Wildlife and Plants; Notice of Intent To Clarify the Role of Habitat in Endangered Species Conservation, 64 Fed. Reg. 31,871, 31,872 (June 14, 1999).
211. The FWS took an approach like this with respect to the Preble's Meadow Jumping Mouse, deciding to include small streams in the species' critical habitat, even though larger streams are more important to the species, on the ground that "Preble's populations along mountain streams may be less subject to certain threats including ... long-term climate change." Endangered and Threatened Wildlife and Plants;
212. Designation of Critical Habitat for the Preble's Meadow Jumping Mouse (Zapus hudsonius preblei), 68 Fed. Reg. 37,276, 37,285 (June 23, 2003) (codified at 50 C.F.R. pt. 17). On the other hand, it declined to do so for the Spreading navarretia plant. A commenter suggested that the critical habitat should "include areas of unoccupied suitable habitat that would provide for recovery opportunities, including . .. migration in response to climate change," but the agency merely observed that "critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for recovery." Endangered and Threatened Wildlife and Plants;
213. Designation of Critical Habitat for Navarretia fossalis (Spreading Navarretia), 70 Fed. Reg. 60,658, 60,662 (Oct 18, 2005) (codified at 50 C.F.R. pt 17).
214. The statute does not define "prudent." According to FWS regulations, designation of critical habitat is not prudent if it "would not be beneficial to the species." 50 C.F.R. § 424.12(a)(1)(ii) (2006). Courts have examined "not prudent" determinations by the FWS with a "hard look" review demanding more than conclusory statements and expecting that such determinations will be rare. See LIEBESMAN & PETERSEN, supra note 7, at 20-21;
215. STANFORD ENVTL. LAW SOC'Y, supra note 7, at 64-66. No phenomenon operating on the scale of climate change has been involved in those cases.
216. The statute does not define "indeterminable." According to FWS regulations, critical habitat is indeterminable if "(i) Information sufficient to perform required analyses of the impacts of the designation is lacking, or (ii) The biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat." 50 C.F.R. § 424.12(a)(2). This is the position the FWS has taken thus far with respect to the polar bear.
217. See Endangered and Threatened Wildlife and Plants; 12-Month Petition Finding and Proposed Rule To List the Polar Bear (Ursus maritimus) as Threatened Throughout Its Range, 72 Fed. Reg. 1064, 1096 (proposed Jan. 9, 2007) (to be codified at 50 C.F.R. pt. 17) (citing 50 C.F.R. § 424.12(a)(2)).
218. See 16 U.S.C. § 1533(b)(6)(C)(ii) (2000). At the end of that year, critical habitat must be designated "to the maximum extent prudent." Id.
219. Id. § 1533(b)(2) (2000 & Supp. 2005).
220. For a discussion of the "best scientific data available" standard, see infra Part III.E.
221. 16 U.S.C. § 1533(b)(2) (2000 & Supp. 2005).
222. Id. § 1533(f)(1) (2000).
223. Id. § 1533(f)(1)(A).
224. Id. § 1533(f)(1).
225. See LIEBESMAN & PETERSEN, supra note 7, at 25-26;
226. STANFORD ENVTL. LAW SOC'Y, supra note 7, at 76-77.
227. For example, the FWS must incorporate in each plan: (i) a description of such site-specific management actions as may be necessary to achieve the plan's goal for the conservation and survival of the species; (ii) objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list; and (iii) estimates of the time required and the cost to carry out those measures needed to achieve the plan's goal and to achieve intermediate steps toward that goal. 16 U.S.C. § 1533(f)(1)(B).
228. See Federico Cheever, Recovery Planning, the Courts and the Endangered Species Act, 16 NAT. RESOURCES & ENV'T 106, 108-10 (2001).
229. See id. at 110-11, 135.
230. See, e.g., Proposed Recovery Plan for the Evolutionarily Significant Unit (ESU) of the Puget Sound Chinook Salmon, 70 Fed. Reg. 76,445, 76,447 (proposed Dec. 27, 2005) (stating that integration of climate change effects in the recovery plan can "support recovery actions to protect and restore local habitat conditions as a buffer against larger-scale changes").
231. The incidental take permitting program is one such exception. See infra Part III.D.1.
232. 16 U.S.C. § 1538(a)(1), (a)(1)(B) (2000).
233. Plants receive more limited protection. See id. § 1538(a)(2).
234. As noted supra Part III.A.l, the listing agency may by rule extend some or all of the take prohibition protections to threatened species. Id. § 1533(d).
235. All these entities fit the ESA's definition of "person." See id. § 1532(13).
236. Id. § 1532(19).
237. 50 C.F.R. § 17.3 (2006) (FWS definition);
238. id. § 222.102 (NMFS definition).
239. 515 U.S. 687,704(1995).
240. See Morrill v. Lujan, 802 F. Supp. 424, 430-31 (S.D. Ala. 1992) (rejecting an ESA claim for injunctive relief based on this set of allegations). In settlement of another round of litigation initiated following denial of the injunction request, the developer in Morrill nonetheless agreed to prohibit house cats in the development.
241. See William H. Satterfield et al, Who's Afraid of the Big Bad Beach Mouse?, 8 NAT. RESOURCES & ENV'T 13, 15 (1993) (citing Developer Agrees To Protect Beach Mice, BIRMINGHAM NEWS, Jan. 19, 1993).
242. Sweet Home, 515 U.S. at 700 n.13.
243. Id. at 696-97 n.9.
244. Id. at 699.
245. Id. at 708-09 (O'Connor, J., concurring).
246. For a thorough survey of the post-Sweet Home cases, see Glen & Douglas, supra note 48, at 68-69.
247. The handful of reported cases involving land uses are covered in Glen & Douglas, supra note 48, passim. As they show, most Section 9 enforcement cases are brought by citizen groups under the citizen suit provision of the ESA. A rare example of federal government prosecution is United States v. Town of Plymouth, 6 F. Supp. 2d 81 (D. Mass. 1998), in which the government sued a city for failing to prevent its citizens from running over a small endangered bird while riding ORVs along a public beach. Id. at 91-92. The FWS and citizen groups have also prosecuted a number of Section 9 cases against water diverters in western states.
248. See James R. Rasband, Priority, Probability, and Proximate Cause: Lessons from Tort Law About Imposing ESA Responsibility for Wildlife Harm on Water Users and Other Joint Habitat Modifiers, 33 ENVTL. L. 595, 618-23, 628-30 (2003).
249. Even the Center for Biological Diversity, which has "push[ed] to use the ESA to fight global warming," concedes that "any bid to fight the construction of a power plant by arguing that emissions might harm a species would probably be thrown out of court, because such climate-change effects remain speculative." Clayton, supra note 116 (reporting on an interview with Kieran Suckling, Policy Dir., Ctr. for Biological Diversity);
250. see also Brendan R. Cummings & Kassie R. Siegel, Ursus martimus: Polar Bears on Thin Ice, NAT. RESOURCES & ENV'T, Fall 2007, at 3, 7 (staff members of the Center for Biological Diversity concede that "[w]hile it is clear that global warming affects listed species, attributing an individual action's contribution to global warming is more difficult"). Difficulties in establishing actual and proximate causation permeate legal analyses of tort and other liabilities associated with climate change.
251. See David A. Grossman, Warming Up to a Not-So Radical Idea: Tort-Based Climate Change Litigation, 28 COLUM. J. ENVTL. L. 1, 22-27 (2003).
252. The difficulty of prosecuting take prohibition claims in such dispersed take scenarios has led some plaintiffs to simplify matters by suing state and local governments that allegedly "authorize" the behavior under state or local law. For example, if a state authorizes boating in state waters inhabited by an endangered species, the claim would be that the state is vicariously liable for injuries boaters cause to the species. This strategy is, not surprisingly, controversial and has had mixed results in the courts. See J.B. Ruhl, State and Local Government Vicarious Liability under the ESA, 16 NAT. RESOURCES & ENV'T 70, 71-73 (2001). It has never been applied successfully on a scale remotely approaching global greenhouse gas emissions. Another approach to simplify take prosecutions in dispersed aggregate causation settings could be to single out only major sources of harm for prosecution seeking injunctive relief. For example, in the western water diversion context, which often presents multiple diverters having an aggregate impact on an aquatic species, the FWS or other plaintiff might select major water diverters as the defendants to enjoin their future diversion of water. Professor James Rasband criticizes this approach to the extent it follows anachronistic tort principles of joint and several liability with no right of contribution. Rasband suggests instead using apportioned injunctive relief based on each defendant's priority of diversion under the western appropriative rights system.
253. See Rasband, supra note 162, at 637-44. As he points out, however, as the number of diverters increases and the proportionate diversion of any one decreases, more and more diverters must be joined in the suit in order to make a dent in the total diversion of water from the aquatic ecosystem.
254. See id. at 641-42. This effect would be particularly acute in the case of greenhouse gas emissions. Neither joint and several liability nor apportioned liability has been employed as a theory of liability in a Section 9 prosecution based on greenhouse gas emissions as the alleged causal agent.
255. See Rasband, supra note 162, at 638 (observing that prosecution of take violation cases presents daunting proof complications and is politically unpopular).
256. For example, the agency does not identify greenhouse gas emissions in the list of activities it believes could potentially result in a violation of Section 9 with regard to the polar bear. See Endangered and Threatened Wildlife and Plans; 12-Month Petition Finding and Proposed Rule To List the Polar Bear (Ursus maritimus) as Threatened Throughout Its Range, 72 Fed. Reg. 1064, 1098 (proposed Jan. 9, 2007) (to be codified at 50 C.F.R. pt. 17).
257. Prosecutorial discretion is relatively unbounded.
258. See Heckler v. Chaney, 470 U.S. 821, 831 (1985) ("This Court has recognized on several occasions over many years that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion.").
259. The FWS cannot generally prevent citizen groups from launching such an enforcement effort, but the agency could do so in specific cases by listing a species as threatened and limiting the scope of the take prohibition with respect to that species, as it is authorized to do under Section 4(d) of the statute. See supra Part III.A.l.
260. 16 U.S.C. § 1536(a)(2) (2000). The provision also requires that "[i]n fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available." Id.
261. For discussion of the "best scientific data available" standard, see infra Part III.E.
262. 16 U.S.C. § 1536(b)(3)(A).
263. 50 C.F.R. § 402.02 (2006).
264. Id.
265. Id.
266. Id.
267. Id.
268. Id.
269. Because past emissions of greenhouse gases will contribute to future climate change, see supra note 60, some increment of future climate change arguably already is within the environmental baseline. Nevertheless, until aggregate global emissions fall to levels that reduce tropospheric greenhouse gas concentrations to levels sufficient to arrest further climate change, all present and future emissions add to the environmental baseline.
270. This reasoning is similar to guidance the Council on Environmental Quality (CEQ) issued in 1997 suggesting that the environmental impacts assessment process required of federal actions under the National Environmental Policy Act (NEPA) "provides an excellent mechanism for consideration of ideas related to global climate change." Draft Memorandum from Kathleen A. McGinty to Heads of Federal Agencies, Guidance Regarding Consideration of Global Climatic Change in Environmental Documents Prepared Pursuant to the National Environmental Policy Act 1 (Oct. 8, 1997), available at http://www.mms.gov/eppd/compliance/reports/ceqmemo.pdf. As CEQ explained: The available scientific evidence .. . indicates that climate change is "reasonably foreseeable" impacts [sic] of emissions of greenhouse gases, as that phrase is understood in the context of NEPA and CEQ regulations .... Specifically, federal agencies must determine whether and to what extent their actions affect greenhouse gases. Further, federal agencies must consider whether the actions they take, [for example], the planning and design of federal projects, may be affected by changes in the environment which might be caused by global climatic change.
271. Id. at 4. The CEQ has not issued further guidance or policy on the topic.
272. 506 F. Supp. 2d 322 (E.D. Cal. 2007).
273. Id. at 328.
274. Id. at 367.
275. Id. at 367-68.
276. Id. at 369.
277. Id. at 369-70.
278. Id. at 370 n.28.
279. See supra text accompanying notes 171, 174-75.
280. The considerable distance between the action and the species is not determinative. The FWS consultation regulations define "action area" - the geographic scope of the consultation analysis - as "all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action." 50 C.F.R. § 402.02 (2006). Thus, the analysis is not limited to the "footprint" of the action, nor is it limited by the Federal agency's authority. Rather, it is a biological determination of the reach of the proposed action on listed species. Subsequent analyses of the environmental baseline, effects of the action, and levels of incidental take are based upon the action area. Id. (defining "environmental baseline" and, by incorporation, "effects of the action" as based on action area).
281. Staff members of the Center for Biological Diversity have suggested that federal actions contributing "appreciable amounts" of greenhouse gases - whether individual actions, such as approval of a large coal fired power plant, or aggregate actions, such as setting fuel standards for SUVs - are appropriate for Section 7 consultations. See Cummings & Siegel, supra note 163, at 7. They do not, however, provide a rationale for drawing the line between "appreciable" and "not appreciable," nor do they offer a basis for not subjecting all emissions to consultation given that all contribute to climate change.
282. See Kempthorne, 506 F. Supp. 2d at 368-70.
283. Many commentators have argued that the ESA inherently demands implementation under an implied background principle of affirmative conduct favoring conservation of protected species. The most prominent example is found in the 1995 report of the National Academy of Sciences' National Research Council (NRC), in which NRC engaged in a top-to-bottom review of the role of science in ESA decision making and concluded, among other things, that the precautionary principle should be applied in ESA contexts so as to impose the burden of proving no harm on the proponent of an action. See NAT'L RESEARCH COUNCIL, supra note 118, at 169. Indeed, some passages of the legislative history of the jeopardy consultation provisions suggest that Congress believed the FWS and the NMFS should, or at least could, "give the benefit of the doubt to the species" when information is not conclusive, as might often be the case with respect to climate change effects.
284. See H.R. CONF. REP. NO. 96-697, at 12 (1979), as reprinted in 1979 U.S.C.C.A.N. 2557, 2576. In these and other decision-making settings, where incomplete or inconclusive information requires the agency to make a close call, several courts have also endorsed the idea of giving the benefit of the doubt to the species.
285. See, e.g., Conner v. Burford, 848 F.2d 1441, 1451-54 (9th Cir. 1988) (requiring the FWS to "give the benefit of the doubt to the species" when the FWS concluded that there was "insufficient information available to render a comprehensive biological opinion" concerning oil and gas leases);
286. Defenders of Wildlife v. Babbitt, 958 F. Supp. 670, 677, 680 (D.D.C. 1997) (stating that the FWS must "give 'the benefit of the doubt to the species'" and list the Canada Lynx despite the FWS's claim that there was not "substantial information that the southern Rocky Mountain population of the Canada lynx meets the definition of a 'species'"). Also, the NMFS has on occasion announced in listing and jeopardy consultation decisions that it would provide that benefit of the doubt to the species or, in the same spirit, would "err on the side of the species." See, e.g., Regulations Governing the Approach to Humpback Whales in Alaska, 66 Fed. Reg. 29,502 (May 31, 2001) (codified at 50 C.F.R. pt. 224) (promulgating regulations under the ESA governing treatment of listed whales, in part to implement a precautionary principle approach); Endangered and Threatened Species; Endangered Status for Snake River Sockeye Salmon, 56 Fed. Reg. 58,619 (Nov. 20, 1991) (codified at 50 C.F.R. pt. 22) (deciding to list a population of salmon notwithstanding uncertainty as to whether it was genetically distinct from other populations); Nat'l Marine Fisheries Serv., Section 7 Consultation Biological Opinion for Bering Sea/Aleutian Islands Groundfish Fisheries 133 (Oct. 19, 2001) (explaining that the agency conducted the consultation by at all times giving the "benefit of the doubt" to the species); Nat'l Marine Fisheries Serv., Section 7 Consultation Biological Opinion on Atlantic Highly Migratory Species Fishery Management Plan 99 (June 14, 2001) (explaining that in selecting takes of turtles from specified activities the agency would "err on behalf of the species");
287. see also Or. Natural Res. Council v. Daley, 6 F. Supp. 2d 1139, 1149 (D. Or. 1998) (quoting an NMFS official's rationale for recommending listing of a population of salmon as being the "err on the side of the species" principle). But it is clear that the statute imposes no such default rule, and the agencies have not officially adopted one as formal policy. Saying that the FWS and the NMFS may err on the side of the species in the face of inconclusive evidence, including in the case of climate change effects, does not mean that they must.
288. See infra Part III.E (discussing the "best scientific data available" standard).
289. From 1998-2001, the FWS conducted over 300,000 consultations, the vast majority of which resulted in findings that the action would not adversely affect the species or that, if there was an effect, it would not jeopardize the species. See U.S. FISH & WILDLIFE SERV., CONSULTATIONS WITH FEDERAL AGENCIES: SECTION 7 OF THE ENDANGERED SPECIES ACT 2 (2007), available at http://www.fws.gov/endangered/pdfs/consultations.pdf.
290. For a concise but comprehensive overview of the structure, history, and policy of the HCP program, see generally Robert D. Thornton, Habitat Conservation Plans: Frayed Safety Nets or Creative Partnerships?, 16 NAT. RESOURCES & ENV'T 94 (2001). Actions that must track through the jeopardy consultation process can receive incidental take authorization in connection with the consultation pursuant to "reasonable and prudent measures that [FWS] considers necessary and appropriate to minimize such impact." See 16 U.S.C. § 1536(b)(4)(ii)(2000).
291. See 16 U.S.C. § 1539(a)(2)(A) (2000).
292. Id. §1539(a)(2)(B)(ii),(iv).
293. See Habitat Conservation Plan Assurances ("No Surprises") Rule, 63 Fed. Reg. 8859 (Feb. 23, 1998) (codified at 50 C.F.R. §§ 17.22, 17.32 (2006)). The policy has been described as an essential component of the HCP program, necessary to make HCPs attractive to landowners.
294. See Fred P. Bosselman, The Statutory and Constitutional Mandate for a No Surprises Policy, 24 ECOLOGY L.Q. 707, 717-19 (1997). The No Surprises policy, then rule, has been the subject of intense procedural and substantive legal challenges.
295. See, e.g., Spirit of the Sage Council v. Norton, 294 F. Supp. 2d 67, 92 (D.D.C. 2003) (finding the rule was not procedurally valid). Recently, however, the court presiding over the litigation found that all procedural defects had been corrected and deemed the rule substantively valid under the ESA.
296. See Spirit of the Sage Council v. Kempthorne, 511 F. Supp. 2d 31, 44-46 (D.D.C. 2007).
297. See 50 C.F.R. § 17.22(b)(5)(iii).
298. See id. § 17.3.
299. These are known as "changed circumstances." Id.
300. See id. § 17.22(b)(5)(i).
301. Under adaptive management, regulators use models of natural resource systems to develop performance measurements and initial policy choices, but build into the regulatory implementation framework a process for continuous monitoring, evaluation, and adjustment of decisions and practices: The concept of adaptive management promotes the notion that management policies should be flexible and should incorporate new information as it becomes available. New management actions should build upon the results of previous experiments in an iterative process. It stresses the continuous use of scientific information and monitoring to help organizations and policies change appropriately to achieve specific environmental and social objectives. NAT'L RESEARCH COUNCIL, THE MISSOURI RIVER ECOSYSTEM: EXPLORING THE PROSPECTS FOR RECOVERY 18-19 (2002). There is broad consensus today among resource managers and academics that adaptive management is the only practical way to implement ecosystem management policy.
302. See Ronald D. Brunner & Tim W. Clark, A Practice-Based Approach to Ecosystem Management, 11 CONSERVATION BIOLOGY 48, 56 (1997);
303. Anne E. Heissenbuttel, Ecosystem Management - Principles for Practical Application, 6 ECOLOGICAL APPLICATIONS 730, 730 (1996);
304. Paul L. Ringold et al., Adaptive Monitoring Design for Ecosystem Management, 6 ECOLOGICAL APPLICATIONS 745, 746 (1996). Indeed, the Ecological Society of America's comprehensive study of ecosystem management treats the use of adaptive management methods as a given.
305. See Norman L. Christensen, The Report of the Ecological Society of America Committee on the Scientific Basis for Ecosystem Management, 6 ECOLOGICAL APPLICATIONS 665, 666 (1996). Appropriately, therefore, the FWS has announced it will administer HCP permits, where gaps in information can run high, using adaptive management as a means to "examine alternative strategies for meeting measurable biological goals and objectives through research and/or monitoring, and then, if necessary, to adjust future conservation management actions according to what is learned." See Notice of Availability of a Draft Addendum to the Final Handbook for Habitat Conservation Planning and Incidental Take Permitting Process, 64 Fed. Reg. 11,485, 11,486-87 (Mar. 9, 1999). HCPs thus are acknowledged to be working hypotheses of how species will respond to changes in habitat size, location, configuration, and quality. To truly integrate adaptive management into an HCP, the plan must include a monitoring program to evaluate the performance of mitigation measures and a system that automatically triggers alternative conservation actions in the event that performance fails to meet conservation goals. Gregory A. Thomas, Incorporating Adaptive Management and the Precautionary Principle into HCP Design, 18 ENDANGERED SPECIES UPDATE 32, 33 (2001);
306. George F. Wilhere, Adaptive Management in Habitat Conservation Plans, 16 CONSERVATION BIOLOGY 20, 22 (2002). The FWS has thus portrayed adaptive management as an important practical tool that "can assist the Services and the applicant in developing an adequate operating conservation program and improving its effectiveness."
307. See Notice of Availability of a Final Addendum to the Handbook for Habitat Conservation Planning and Incidental Take Permitting Process, 65 Fed. Reg. 35,242, 35,252 (June 1, 2000).
308. For in-depth discussions of the integration of adaptive management into the HCP program, see generally Holly Doremus, Adaptive Management, the Endangered Species Act, and the Institutional Challenges of "New Age" Environmental Protection, 41 WASHBURN L.J. 50, 68-74 (2001) [hereinafter Doremus, Adaptive Management], and J.B. Ruhl, Regulation by Adaptive Management - Is It Possible, 7 MINN. J. L. SCI. & TECH. 21 (2005).
309. Habitat Conservation Plan Assurances ("No Surprises") Rule, 63 Fed. Reg. 8859, 8863 (Feb. 23, 1998) (codified at 50 C.F.R. §§ 17.22, 17.32 (2006)).
310. Some commentators posit that the No Surprises approach may constrain the use of adaptive management, as it cuts off revision of prior agreements about the HCP's conservation measures. See Doremus, Adaptive Management, supra note 200, at 72-73. On the other hand, one might just as reasonably complain that adaptive management undermines the No Surprises policy, as its very purpose is to ensure the ability to adjust decisions after the HCP is issued. In fact, the two approaches seem to me to be complementary, not conflicting. The No Surprises policy simply defines who is responsible for measures necessary to address unforeseen circumstances, and a comprehensive, criteria-specific adaptive management provision in an HCP negates the argument that matters contemplated as the subject of adaptive management were unforeseen for purposes of the No Surprises policy. It should therefore be in the interests of both the agency and the applicant to negotiate an adaptive management provision that spells out its scope and subject matter with clarity and precision, including the reasonably foreseeable effects of climate change.
311. 16 U.S.C. § 1539(j)(2)(A) (2000). Authorization for an agency or organization relocating the population is obtained under Section 10(a)(1)(A) of the ESA, which provides for the FWS to grant permits "to enhance the propagation or survival of the affected species, including, but not limited to, acts necessary for the establishment and maintenance of experimental populations." Id. § 1539(a)(1)(A). The "but not limited to" language of this permitting provision suggests other potential applications may arise in connection with enhancing the survival of climate-threatened species. Id.
312. See 50 C.F.R. § 17.81(a) (2006).
313. See 16 U.S.C. § 1533(a)(1)(A) (2000).
314. Id. § 1533(b)(1)(A).
315. See id. § 1533(a)(3), (b)(2).
316. See id. § 1536(c);
317. 50 C.F.R. § 402.14(g)(8) (2006).
318. Although several other environmental statutes use the phrase or something close to it, all leave it undefined. See Michael J. Brennan et al., Square Pegs and Round Holes: Application of the "Best Scientific Data Available" Standard in the Endangered Species Act, 16 TUL. ENVTL. L.J. 387, 402 n.81 (2003) (collecting statutes);
319. Holly Doremus, Listing Decisions Under the Endangered Species Act: Why Better Science Isn't Always Better Policy, 75 WASH. U. L.Q. 1029, 1034 n.9 (1997) (collecting statutes) [hereinafter Doremus, Listing Decisions].
320. 520 U.S. 154(1997).
321. Id. at 176-77.
322. See Sw. Ctr. for Biological Diversity v. Norton, Civ. No. 98-934 (RMU/JMF), 2002 WL 1733618, at *8-9 (D.D.C. July 29, 2002) (summarizing the existing body of case law).
323. See generally Brennan et al, supra note 209, at 396-430;
324. Laurence Michael Bogert, That's My Story and I'm Stickin' To It: Is the "Best Available " Science Any Available Science Under the Endangered Species Act?, 31 IDAHO L. REV. 85 (1994);
325. Doremus, Listing Decisions, supra note 209, at 1051-85;
326. John Earl Duke, Note, Giving Species the Benefit of the Doubt, 83 B.U. L. REV. 209 (2003).
327. Sw. Ctr., 2002 WL 1733618, at *8.
328. Id. (citing Bldg. Indus. Ass'n of Superior Cal. v. Norton, 247 F.3d 1241, 1246-47 (D.C. Cir. 2001)).
329. Id.
330. See id. at *9.
331. See id. (citing Sw. Ctr. for Biological Diversity v. Babbitt, 215 F.3d 58 (D.C. Cir. 2000))
332. See id.
333. See Doremus, Listing Decisions, supra note 209, at 1084-87.
334. Endangered and Threatened Wildlife and Plants: Notice of Interagency Cooperative Policy on Information Standards Under the Endangered Species Act, 59 Fed. Reg. 34,271, 34,271 (July 1, 1994).
335. Id.
336. I have examined this question in more detail elsewhere. See J.B. Ruhl, Is the Endangered Species Act Ecopragmatic?, 87 MINN. L. REV. 885, 927-29 (2003);
337. Ruhl, Methodology, supra note 110, at 579-84.
338. The conventional rules of judicial review - the default rules when the agency's organic act is silent - are found in the Administrative Procedure Act (APA). 5 U.S.C. § 706 (2000). These rules require the courts to apply considerable deference to the agency's decision. A reviewing court may not substitute its judgment for the agency's, but must undertake a "thorough, probing, in-depth review" of the agency's decision. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16 (1971). Thus, a court will reject an agency's decision if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A);
339. see, e.g., Biodiversity Legal Found, v. Babbitt, 146 F.3d 1249, 1252 (10th Cir. 1998). An agency decision is arbitrary and capricious if the agency has either "relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation ... counter to the evidence ..., or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise," or if it has failed to "articulate a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.'" Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The ESA has been widely interpreted as being subject to these rules with no substantial exceptions. See, e.g., Am. Wildlands v. Norton, 193 F. Supp. 2d 244, 251 (D.D.C. 2002);
340. Loggerhead Turtle v. County Council of Volusia County, 120 F. Supp. 2d 1005, 1013 (M.D. Fla. 2000);
341. Friends of the Wild Swan, Inc. v. U.S. Fish & Wildlife Serv., 945 F. Supp. 1388, 1394 (D. Or. 1996).
342. See, e.g., Sw. Or. for Biological Diversity v. Norton, Civ. No. 98-934 (RMU/JMF), 2002 WL 1733618, at *8-9 (D.D.C. July 29, 2002) (discussing at length the meaning of the "best evidence standard").
343. For example, courts have been reluctant to uphold challenges to the substance of FWS jeopardy opinions based on allegations that the best available science standard adds some special kick to the default rules of the APA. See Katherine Renshaw, Leaving the Fox To Guard the Henhouse: Bringing Accountability to Consultation Under the Endangered Species Act, 32 COLUM. J. ENVTL. L. 161,172-81 (2007).
344. See, e.g., LIEBESMAN AND PETERSEN, supra note 7, at 16 (discussing the standard in the context of the basic APA judicial review criteria);
345. Brennan et al, supra note 209, at 412-32 (thorough review of cases interpreting the "best scientific data available" standard).
346. See, e.g., Loggerhead Turtle, 120 F. Supp. 2d at 1023 ("Where there is a substantial volume of research, data, and comments, the agency exercises its expertise to make a reasonable decision based on all of the data and information.").
347. Natural Res. Def. Council v. Kempthorne, 506 F. Supp. 2d 322, 369 n.27 (E.D. Cal. 2007).
348. Id.
349. Id.
350. Id.
351. There is strong evidence that almost every flow system in nature, from Earth's jet streams to Jupiter's banded winds, responds to disturbances by moving toward self-organized order. See Richard A. Kerr, Order from Chaos, Power from Dissipation in Planetary Flows, 317 SCIENCE 449, 449 (2007).
352. For example, federal agencies required to prepare environmental impact statements under the National Environmental Policy Act in connection with projects they carry out, fund, or authorize must "[o]btain the comments of any Federal agency which has . . . special expertise with respect to any environmental impact involved." 40 C.F.R. § 1503.1(a)(1) (2007).
353. Maximizing biodiversity will assist the ecosystems of the future, whatever pattern they assume, in establishing and maintaining resilience. See Andy Hector & Robert Bagchi, Biodiversity and Ecosystem Multifunctionality, 448 NATURE 188, 188 (2007).
354. This approach is what McLachlan et al. refer to as "constrained assisted migration," as opposed to aggressive use of assisted migration at one extreme and total prohibition of the practice at the other extreme. See Jason S. McLachlan et al., A Framework for Debate of Assisted Migration in an Era of Climate Change, 21 CONSERVATION BIOLOGY 297, 299 (2007).