Bush Administration Considers the Possibility of Future Climate Regulation—As an Excuse for Not Protecting Wildlife

The National Marine Fisheries Service (NMFS) recently made an interesting, and little noted, move that speaks volumes about this Administration's attitude towards climate change legislation.  Last year the Center for Biological Diversity petitioned to list the ribbon seal, which like many marine mammals in the Arctic is imperiled by the continued loss of sea ice, as a threatened species.  A threatened species is defined by the Endangered Species Act as "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 

Now, as you can imagine, a lot can ride on what one considers the "foreseeable future" to be when assessing a petition to list a species as threatened.   In the past, both the U.S. Fish and Wildlife Service, which also administers the Act, and NMFS have used a variety of approaches to define foreseeability.  In some cases, the Services have used a "generational" approach, defining the foreseeable future as three or more generations of the species it was assessing.  In other cases, they have used 100 year projections.  But whatever the timeframe selected (and, as an aside, the generational approach is problematic) the Services have never to my knowledge truncated their view of what is foreseeable based on the uncertainty of future human action.  

Until now, that is.  In its decision to reject the ribbon seal petition, NMFS states (emphasis added): 

For this status review, the foreseeable future was determined to be the year 2050 because past and current emissions of greenhouse gases have already largely set the course for changes in the atmosphere and climate until that time, and because of enormous uncertainty about future social and political decisions on emissions that will dominate projection of conditions farther into the future. Beyond the year 2050, projections of climate scenarios are too heavily dependent on socioeconomic assumptions and are therefore too divergent for reliable use in assessing threats to ribbon seals. 

Translation: since we may regulate greenhouse gas pollution in the future and those regulations may be robust enough to reduce sea ice loss beyond 2050, any effects of global warming on ribbon seals beyond that time are not foreseeable.   

There are a number of problems with this argument, but two deserve special mention. 

• First, and most fundamentally, this approach turns the precautionary nature of the Endangered Species Act on its head.  The whole point of the Endangered Species Act is to protect species who we anticipate will slide into extinction if we do nothing.  Using the fact that people may take action in the future to address threats to a species as an excuse not to protect that species thus upends the entire approach to wildlife protection the Endangered Species Act seeks to further. 
• Second, this approach is inconsistent with the Act itself.  One of the factors that must be taken into account when determining if a species should be protected under the Endangered Species Act is "the inadequacy of existing regulatory mechanisms."  The statute thus already takes into account the effect of regulation on a species and if existing regulations are not adequate to shield a species from extinction it must be protected.  Had Congress wanted the Services to take into account possibility (or even probability) of future regulations on a species survival it would have said so.  For example, the statute could have said that the "inadequacy of existing or future regulatory mechanisms" was a factor to be considered.   

For eight years the Bush Administration did everything it could to deny, avoid, and then delay climate change regulation.  To now use the possibility that we may actually take meaningful action to combat global warming as an excuse to do nothing for wildlife threatened by climate change is deeply cynical, even by the sorry standards I've grown accustomed to.