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On June 17, 2016, the National Marine Fisheries Service (NMFS) adopted Revised Guidance for Treatment of Climate Change in NMFS Endangered Species Act Decisions (Guidance).  In 2014, a NMFS working group identified seven key climate change policy questions that inhibited NMFS’ ability to make sound Endangered Species Act (ESA) decisions.  The new Guidance answers these questions and provides seven key climate change policy considerations, and directs Regional Administrators to implement them.

The first policy consideration establishes that NMFS will follow the Intergovernmental Panel on Climate Change’s (IPCC) Representative Concentration Pathway 8.5 when considering the effects of climate change in making ESA listing decisions.  The IPCC created four Representative Concentration Pathways, which are greenhouse gas emission scenarios.  Representative Concentration Pathway 8.5 represents the scenario of continued greenhouse gas increases in the atmosphere.  Thus, when considering climate change in making listing decisions NMFS will analyze only the scenario where greenhouse gases continue to increase.

The second policy consideration sets the timeframes for the different ESA actions NMFS takes.  When making Section 4 decisions (e.g., listing and recovery decisions), NMFS will consider “effects over the largest possible period for which credible projections are available.”  For example, NMFS has used up to 100 year timeframes when there is reliable data.  For Section 7 and 10 decisions (e.g., consultation and permitting), NMFS will consider the effects of climate change over “the timeframe of the action’s direct and indirect effects.”

NMFS’ third policy consideration recognizes that climate change and, therefore, greenhouse gases are regulated nationally and internationally.  So, this policy consideration allows NMFS to rely on its own previous decisions that analyze the national and international regulatory structure for reducing greenhouse gases.  NMFS justifies this policy as an increase in efficiency so that it does not have to duplicate its efforts in reviewing the status of the regulatory structure.  The policy notes that the listing of certain coral species in 2014 provides a comprehensive analysis of the regulatory structure through 2014.

The fourth policy consideration allows NMFS to designate unoccupied areas as critical habitat when there is “adequate data to support a reasonable inference” that the unoccupied area is essential to the conservation of the species.  The ESA allows unoccupied areas to be designated as critical habitat when it is essential to the conservation of the species.  Now under this policy, if there is sufficient data to show that due to the effects of climate change the unoccupied area will be essential, it can be designated as critical habitat.

The fifth policy consideration requires NMFS to consider the possible benefits to species from climate change.  However, when there is uncertainty as to the “relative magnitude of beneficial or adverse effects,” more weight will be given to the adverse effects.  This is consistent with NMFS’ application of the principle of institutional caution.

NMFS’ sixth policy consideration directs NMFS to work on incorporating climate change into its adaptive management processes in Section 7 consultation and Section 10 long term permitting.  NMFS recognizes that climate change will affect species over a long period of time so it needs to have “adequate monitoring of climate and biological variables,” “identification of appropriate triggers related to those variables,” and “protective measures that can be implemented without reinitiating when those triggers are reached.”  This policy consideration directs NMFS to develop further guidance with respect to incorporating climate change into adaptive management.

Finally, the seventh policy consideration directs NMFS to coordinate more closely with action agencies during the design phase of a project in order to incorporate design elements that will address the effects of climate change.  NMFS seeks to ensure that a project continues to serve listed species over a longer timeframe when the effects of climate change will be seen.  NMFS’ seven new policy considerations seek to incorporate the effects of climate change more closely into its ESA decision making processes and provide a rational justification for those decisions.

For more information, please contact Kristian Corby at kcorby@somachlaw.com.

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