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Will the Endangered Species Act Make It to 2050?

This week a task force of federal, state, and tribal agencies released the National Fish, Wildlife, and Plants Climate Adaptation Strategy, a 5-10 year plan for initiating actions to assist species adapting to climate change. The Endangered Species Act (ESA) does not figure prominently in the plan. Why not?

A few years ago I published an article in the Boston University Law Review, Climate Change and the Endangered Species Act, in which I outlined  a trajectory of three key forces of species endangerment flowing from climate change:

  • Ecosystem disruption: some species will find it difficult to persist within their current ranges as climate change pulls apart the species assemblies and ecosystem properties to which they have adapted over eons. Many such species are stuck where they are–migration is not an option. Salmon and pikas are examples.
  • Adaptive species migrations: some species, however, will find migration an escape from climate disruption. Bravo for them! But when they move into habitat occupied by the “stuck” species, they will add yet another stressor.
  • Human adaptation: as humans respond to climate change with sea walls, relocation of coastal cities, water diversions, agricultural adaptations, pest and disease controls, and a host of other adaptation responses, we will put yet more pressure on species at the margin. Humans in need of adaptation may feel less warm and fuzzy about species standing in the way.

The main thrusts of the article were that (1) the ESA is not designed for greenhouse gas emission regulation, but that (2) the ESA, if innovatively deployed by the Fish & Wildlife Service and NOAA, could facilitate species’ climate adaptations. I am beginning to think I was too optimistic.The legal futurist in me doesn’t give the ESA’s species-specific, land use regulation approach more than 10-15 more years before it is overrun by climate change. No way it makes it to 2050.

The measures I outlined in the article now strike me more as band-aids that may buy climate-threatened species five or ten years. Listing climate-threatened species as threatened or endangered, crafting special rules for their management, designing adaptation oriented recovery plans, and reaching out with future-oriented critical habitat designations might work for some species here and there for a while.

Before long, however, the sheer number of climate-threatened species combined with the challenges of managing shifting ecological regimes will render species-specific management nearly impossible. It is difficult to envision the ESA working the way it has been implemented the last two decades–which has been largely to avoid extinctions through strong-armed land use regulation–in a world of hundreds of climate-threatened species distributed and moving across shifting ecological landscapes side-by-side with humans doing the same.

What to put in its place? How will we respond to the decline of hundreds of climate-threatened species around us? A robust greenhouse gas emissions strategy is, of course, a necessary component. But climate change is baked in to our future based on past emissions and the time lag of their climate impacts–some scientists believe we face 100 or more years of continued climate change regardless of how aggressively we clamp down on emissions in the next 20 years. So we need a new model of species conservation, and it can’t be based on species-by-species management. We will need to design a transition strategy that explicitly recognizes we are managing a moving target for the foreseeable future. Managing for overall biodiversity rather than a particular species assembly, for example, will prove more realistic in this transitional strategy, particularly given we have little idea what ecosystems are transitioning to in the no-analog future. It is not too early to begin designing a new legal regime for species conservation centered around the theme of ecological transition.

I have worked with the ESA for over 30 years. It has its own peculiar set of strengths and shortcomings setting it apart from other environmental laws. It has proven somewhat effective and almost always controversial. It has been a good run, but it will not outlast climate change. I will miss it.

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