Seal Listing Could Draw Fed Fisheries Agency Closer to Global Warming Issue
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An attorney for one environmental group that has actively sought to bring the tools of endangered species protections into the fight against global warming says the tactic could have multiple effects.
Brendan Cummings, a lawyer for the Center for Biological Diversity, suggested in an interview with Climate Law Update that the organization’s recent success in getting the National Marine Fisheries Service to examine climate-related endangered species protection for several species of seals could produce impacts both locally and much broader in scope. The agency last week announced it would review the ribbon seal, a mammal that inhabits Alaska’s Bering Sea, for listing under the Endangered Species Act, as well as three other seal species: bearded, spotted and ringed (see press release and formal notice).
The fisheries service said it was acting on a petition presented last year by the environmental organization asking it to list the seal as threatened or endangered (see text of petition). Last week's statement by the agency came a few days after the environmental group threatened to bring a lawsuit to force the government to act.
At a regional level, the group’s petition to the government agency cited threats to the seals from such sources as oil and gas development, commercial fishing and Russian harvesting of the animals. But it also warned that the ice on which the seals live is rapidly melting due to global warming.
Theoretically, an eventual placement of the animals on the list could lead to restrictions on a number of the local activities, as well as adding the agency as a regulatory player in combating climate change. The endangered species law contains provisions mandating that “federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this act.”
Under the law, regulators throughout government are supposed to consider potential impacts on endangered species when carrrying out their duties. That means, for one, consulting with colleagues in the wildlife regulatory agencies. It's a wide net that environmentalists believe should be used to cover government activities such as issuing permits for power plants or new highway construction.
Cummings said the seals face a "double-barreled threat" both from local development, such as oil and gas projects, and from greenhouse gas-related global warming. He noted that new threats to the animals might also develop as the ice disappears, allowing for shipping lanes to open and for additional fisheries to develop.
"It's being viewed as the new gold rush," he said. A listing of the seals would give the creatures some additional protections if the new developments occur.
But he said there would also have to be efforts to curtail emissions of greenhouse contributors such as carbon and methane.
"If we don’t stop global warming, there’s not much we can do for these species,” said Cummings, whose office is in Joshua Tree, California. He noted, for instance, that unlike some other marine mammals such as the walrus that can use dry land as a habitat of last resort, the ribbon seal is never seen on land.
In addition, he said other issues need to be examined “pro-actively,” including the impacts of an ocean fishery that may be shifting geographically northward along with warming waters.
A listing by the fisheries service would also engage an agency, which is housed in the U.S. Commerce Department's National Oceanic and Atmospheric Administration, that the environmental group feels has been historically more responsive to endangered species considerations than its sister bureaucracies. That latter category includes the Interior Department’s Fish and Wildlife Service, with which the organization has repeatedly tangled.
Part of the goal, Cummings said, is to “get [the fisheries service] involved in species management in a changing climate.”
Doug Mecum, acting administrator for the fisheries service’s Alaska region, was reluctant to predict what would result if the seals were to be listed.
“We’re kind of a long ways away from determining what, if anything, might be done,” he told Climate Law Update. He acknowledged, however, that “it’s kind of mind-boggling given the potential scope” of actions that theoretically could be implicated.
At the same time, Mecum suggested his agency’s specific authority had limits.
“I think that first and foremost you look at things under your immediate control,” he said. For example, the agency has since the early 1990s listed some part of the Stellar sea lion population as threatened and others endangered, and officials have identified threats to animals as diverse as killer whales because of climate change and issues related to the commercial fishing industry. He said the agency has little it can do about the first two and so it has concentrated on regulation related to the fisheries (see recovery plan here).
When it comes to the seals, he said, one thing to look at would be finding ways to mitigate the impact of oil and gas development in their habitat.
On the larger issue of how multiple government agencies would deal with species found to be threatened by climate change, Mecum said he “wouldn’t hazard a guess” about what the future holds.
“This is pretty much new ground we’re breaking here,” he said.
Clearly, organizations such as Cummings’ intend to press the issue. The Center for Biological Diversity has targeted global warming’s alleged effects on a number of cold-climate animals, including the polar bear and the Pacific walrus, in addition to the seals. It recently joined with other environmental groups to sue the fish and wildlife service (see Climate Law Update story) to prod some action out of the agency on listing the bears. The group has also sent the agency a formal request (see press release and petition) to protect the walrus under the endangered species law. Regarding more temperate regions of the world, the group successfully pushed the fisheries service into listing two species of Florida and Caribbean coral as threatened because of global warming, and designating "critical habitat" for the invertebrates (see press release).
But traditional wildlife agencies aren’t the only ones facing the group’s legal assault. Attorneys for the organization recently enlarged a lawsuit against the U.S. Department of Energy regarding that agency’s designation of new power transmission line corridors. The lawsuit claimed officials allegedly failed to consider the impacts on endangered species, specifically by not going through the inter-agency consultation process (see lawsuit and Climate Law Update story). In addition, the environmental group in 2007 won a federal appeals court ruling against the U.S. Department of Transportation that just last week produced action to begin considering global warming when setting fuel economy standards for light trucks and sport utility vehicles (see Climate Law Update story).
(Photo of ribbon seal courtesy of NOAA)
