Endangered Species Act Listings and Climate Change: Avoiding the Elephant in the Room

44 Pages Posted: 9 Dec 2013 Last revised: 8 Feb 2014

Date Written: December 6, 2013

Abstract

The Endangered Species Act (ESA), with its reputation as the nation’s strongest environmental law, might be expected to impose some limits on greenhouse gas (GHG) emissions adversely affecting listed species due to rising global temperatures. Although the federal government recently ended a long period of denial by conceding that some species warrant listing because of climate change, the accompanying listing decisions revealed a federal refusal to apply the ESA to constrain GHG emissions causing the listings. In this article, we explain those decisions — involving the American pika, the polar bear, the wolverine, and the Gunnison sage-grouse — and their implications. We conclude with some surprising observations about the Obama Administration’s apparent endorsement of Justice Scalia’s approach to the ESA’s habitat protections, the Administration’s use of constitutional standing rules to limit the effective scope of the statute, the growing significance of the distinction between endangered and threatened species, and the unintended boomerang effects of the administrative reforms of the statute in the 1990s.

Keywords: Endangered Species Act, climate change, greenhouse gas emissions, environmental law, natural resources law

JEL Classification: K11, K32, O13, O38, Q24, Q25, Q28, Q38, R52

Suggested Citation

Blumm, Michael C. and Marienfeld, Kya, Endangered Species Act Listings and Climate Change: Avoiding the Elephant in the Room (December 6, 2013). Animal Law Review, Vol. 20, No. 1, 2014 Forthcoming; Lewis & Clark Law School Legal Studies Research Paper No. 2014-2. Available at SSRN: https://ssrn.com/abstract=2364687

Michael C. Blumm (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States
503-768-6824 (Phone)
503-768-6701 (Fax)

Kya Marienfeld

Independent ( email )

No Address Available

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