When is an endangered species endangered? That’s the question (and it’s a big one) that has been teed up by a recent court ruling in Washington, D.C.
In a case brought by NRDC, the Center for Biological Diversity, and Greenpeace USA about the polar bear, the Obama Administration has argued that in order for a species to be endangered it must be faced with an “imminent” threat of extinction. We argued that the text of the Act imposed no such requirement (imminence is a factor to be considered, sure, just not the only one). Last month, U.S. District Court Judge Emmett Sullivan rejected an argument that the plain language of the Endangered Species Act requires that extinction be “imminent” before a species can be listed as endangered under the ESA. The Court ordered the U.S. Fish and Wildlife Service, by December 23, 2010, to reconsider or further explain its current position.
In the context of the polar bear case, this question matters because the government's own models show that polar bears face over an 80% chance of becoming extinct by mid-Century throughout much of their range. So, is a species facing a high probability of extinction in forty or fifty years “endangered” or merely “threatened”? From our point of view the answer is clear. We see polar bears as a species tied to the train tracks, and global warming is the train. Unless we stop the train, what difference does it make if it is half a mile away or a mile and a half away?
For other species, this question matters a great deal as well. If imminence is the controlling factor (rather than just a factor) in making listing decisions, then there are a whole host of species that may not achieve the highest level of protection under the Endangered Species Act, particularly those imperiled by global warming. Even more disturbingly, there are a number of species that are already listed as “endangered” which, it could be argued, wouldn’t qualify for an endangered listing under this theory.
Today a coalition of some of the largest and most influential environmental and conservation organizations in the country weighed in. In a letter to Secretary of the Interior Ken Salazar and Secretary of Commerce Gary Locke, the groups urged the agencies to “reverse the interpretation of the ESA now being advanced in the polar bear case and instead clarify that a species facing a high risk of extinction is, in fact, an endangered species, even if that risk is not imminent in nature.” The groups signing the letter included NRDC, Defenders of Wildlife, Earthjustice, the League of Conservation Voters, the National Audubon Society, the National Wildlife Federation, the Sierra Club, the Wilderness Society and the World Wildlife Fund. You can read the whole thing here.
Let’s hope the Obama Administration is listening.