On October 24, 2016, the Ninth Circuit upheld the National Marine Fisheries Service’s (NMFS) threatened listing of Pacific bearded seal subspecies based on climate change projections determining the loss of sea ice over the species’ Arctic habitat.  Alaska Oil & Gas Association et al. v. Pritzker et al., No. 14-35806 (9th Circuit, Oct. 24, 2016) (AOGA) (full opinion can be found here).  In applying and clarifying the Ninth Circuit precedent, the Court noted that the Endangered Species Act (ESA) requires NMFS to consider the best and most reliable scientific and commercial data and to identify the limits of that data when making a determination.  Based on the administrative record to support NMFS’ listing decision of the Pacific bearded seals, the Court found that NMFS reasonably concluded that continued loss of sea ice due to climate change will result in habitat loss and threaten the species’ existence.  The Court’s decision solidifies federal agencies’ use of climate change models in making ESA listing decisions.

NMFS listed two distinct population segments (DPS) of Pacific bearded seal subspecies in response to a 2008 petition.  The AOGA Plaintiffs filed an ESA citizen suit alleging that NMFS’ listing of the two threatened DPS was not based on the “best scientific and commercial data available.”  Among other claims, Plaintiffs alleged NMFS’ use of climate model projections for loss of habitat beyond 2050 was speculative.  The federal district court ruled for the Plaintiffs as to projections of bearded seal viability beyond 2050.  NMFS appealed.

The Ninth Circuit reviewed the listing decision to determine whether it was arbitrary, capricious, or an abuse of discretion.  NMFS’ decision must be “solely on the basis of the best scientific and commercial data available” and determination of the “best” scientific data available belongs to the “agency’s special expertise.”  NMFS used observations and modeled data from the Intergovernmental Panel on Climate Change’s (IPCC) Fourth Assessment Report to study potential degradation to the sea ice habitat.  NMFS made its data and methodology available for public review, considered public comment, and sought additional independent peer review of the more controversial sections of its analysis.  The Ninth Circuit found that “NMFS provided ample evidence of significant sea ice loss from 2007 to 2050, a period in which specific data supports the IPCC climate projections.”  The Court found that NMFS’ projections for 2050 through 2100 also were “reasonable, scientifically sound, and supported by evidence.”  In short, NMFS provided a reasonable and scientifically supported methodology and fairly described the shortcomings of its analysis.  According to the Ninth Circuit, “that is all the ESA requires.”  NMFS need not base its listing decision on “ironclad evidence” because the ESA “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.”

The Ninth Circuit’s decision follows on the heels of NMFS’ June 2016 guidance for use of climate change in ESA listing decisions (see Somach Simmons & Dunn Environmental Law & Policy Alert “NMFS Adopts New Guidance for Incorporating Climate Change into ESA Decisions” (Oct. 18, 2016) found here).  In upholding NMFS’ bearded seal listing, the Ninth Circuit held that NMFS may list based on climate change models, provided the record includes reasonable explanation for its decision and acknowledgement of any limitations.

For more information on this case or the ESA generally, please contact Richard S. Deitchman at (916) 446-7979 or rdeitchman@somachlaw.com.

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