J.B. Ruhl

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Boston University Law Review

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climate change, endangered species, mitigation litigation


Environmental Law | Law


This Article examines the challenges global climate change presents for the Endangered Species Act (ESA) and its primary administrative agency, the U.S. Fish and Wildlife Service (FWS). Climate change will reshuffle ecological systems in ways that will defy prediction using existing knowledge and models, posing threats to species through primary and secondary ecological effects and the effects of human adaptation to climate change. Even assuming global-wide regulation of greenhouse gas emissions eventually yields a more stable climate variation regime, it will differ from the recent historical regime and many species will not survive the transition regardless of human interventions using the ESA. Yet many other species can survive with the assistance offered through a focused application of the ESA. The Article proposes a policy approach aimed toward that objective. Part I introduces the climate change challenge facing the FWS and explains why, after the Supreme Court's decision in Massachusetts v. EPA, the agency must develop a response. Part II examines the likely ecological consequences of climate change, for which we have no analog, and develops a typology of threats species will experience. Part III explores the pressures climate change will place on FWS policy decisions as increasingly more species face increasingly more serious imperilment as a result of climate change. Part IV methodically probes the relevant provisions of the ESA to identify the range of policy discretion the FWS has in making those decisions. Part V then lays out a plan for the FWS to use the ESA to build bridges for climate-threatened species across the climate change transition and into the no-analog future. Most significantly, I propose that the ESA not be used to regulate greenhouse gas emissions, but rather that it be focused on establishing protective measures for species that have a chance of surviving the climate change transition and establishing a viable population in the future climate regime. In particular, the ESA can help ensure that human adaptation to climate change does not prevent other species from adapting as well.



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