The Nickel Report

A recent US Court of Appeals decision could have broad implications for how federal wildlife agencies consider potential climate change impacts on species and their habitat. Pursuant to the Endangered Species Act (ESA), the US Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS) must determine whether to list a species as endangered or threatened based on “the best scientific and commercial data available.” 16 U.S.C. § 1533(b)(1)(A). Given the inherent uncertainties and limitations of forecasting specific population changes (or habitat changes) on the basis of climate change projections, the Services may find that potential climate change impacts on a species are too speculative to support a decision to list a species. The US Court of Appeals for the Ninth Circuit, however, recently overturned a FWS decision not to list a species on that basis. In reviewing FWS’s decision not to list the arctic grayling, a cold-water fish species found in Montana, a three-judge panel found that FWS failed to adequately explain why uncertainty regarding future impacts of climate change justified its conclusion that listing the species was not warranted.

The Corps Struggles to Balance Competing Constitutional and Statutory Duties

Federal agencies must often balance competing policy concerns and legal requirements. This process may be difficult and fraught with intense public feedback, and frequently results in litigation. The U.S. Army Corps of Engineers (the Corps) has found itself in the hot seat over how it manages the nation’s rivers, pitting its obligations under the Endangered Species Act (ESA) against private property rights. Litigation in the federal courts may soon determine whether, and if so how, responsible the federal government is for unintentional or incidental flooding when the government manages rivers for the benefit of listed species. These cases also bring to the fore a burning question: When can government agencies be held responsible for natural events? With the increase in climate change-related litigation nationwide, this issue will likely only rise in prominence.