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By Alan Kovski
Oct. 24 — Severe risks posed by climate change to seals in waters off the Alaska coast may be almost a century away, but that does not make the estimates of those dangers too speculative for an Endangered Species Act listing, a federal appeals court ruled Oct. 24 ( Alaska Oil and Gas Ass’n v. Pritzker , 9th Cir., No. 14-35806, 10/24/16 ).
The ruling by the U.S. Court of Appeals for the Ninth Circuit reversed a district court decision that had invalidated a decision of the National Marine Fisheries Service to list a population of the bearded seal as threatened. The threatened population of the seal is found in the Bering, Chukchi, Beaufort and East Siberian seas.
“NMFS has provided a reasonable explanation, based on the best available scientific and commercial data, for relying on those projections in its listing decision,” the court said. “NMFS’s projections for the second-half of the century are also reasonable, scientifically sound, and supported by evidence. There is no debate that temperatures will continue to increase over the remainder of the century and that the effects will be particularly acute in the Arctic.”
Two oil and gas industry associations and the state of Alaska took the NMFS to court over the listing decision. Oil companies have at times explored for oil in the Beaufort and Chukchi seas and can face more difficult permitting approvals whenever a species is listed as threatened or endangered in an area where the companies hope to operate.
The American Petroleum Institute said it was review the decision.
The NMFS listed the population as threatened because of estimates that climate change could bring the population to the point of being endangered by about 2095 as sea ice dwindles from global warming. Ocean acidification, the increase in marine carbonate molecules because of increasing carbon dioxide, was also noted as a potential threat to the food web needed by the seals.
The service has not yet proposed a designation of critical habitat for the bearded seal population, but it will do so at some point in the future, it said.
The Alaska Oil and Gas Association and the American Petroleum Institute had argued that the long-range estimates were based on too little data and too much supposition, failing to meet the Endangered Species Act requirement for estimates based on the “reasonably foreseeable future.” The district court agreed, but a three-judge panel of the appeals court Oct. 24 overturned that finding.
“Although Plaintiffs frame their arguments as challenging long-term climate projections, they seek to undermine NMFS’s use of climate change projections as the basis for ESA listings,” Judge Richard A. Paez said in the opinion.
The appeals court said it would follow the precedent established in the Ninth Circuit when litigation challenged the listing of the polar bear as a threatened species. The court held that the climate models of the Intergovernmental Panel on Climate Change constituted the best available science for supporting estimates about the fate of species reliant on sea ice. The IPCC is an inter-governmental scientific research body that operates under the auspices of the United Nations.
The listing of the polar bear as threatened in 2008 was followed by a designation of 187,157 square miles of critical habitat, mostly areas of sea ice. That did not prevent oil and gas work in the Beaufort and Chukchi seas, though it provided companies with another worrisome factor in permitting.
Similarly, four Arctic subspecies of the ringed seal were declared threatened in 2012, and in 2014 the NMFS proposed a critical habitat designation for the subspecies that the agency said would have only a “modest” impact on oil and gas development plans. For the ringed seal as for the polar bear and the bearded seal, the most prominent threat was a projected dwindling of sea ice because of climate change.
Marine mammals including seals and polar bears already enjoy considerable protections under the Marine Mammal Protection Act, which reduces the likely impact of an Endangered Species Act listing or a critical habitat designation.
Oil and gas companies and other companies are obligated to minimize their harm to marine mammals. Royal Dutch Shell Plc found its exploratory drilling effort in the Chukchi Sea in 2015 hampered to some degree by some restrictions to protect marine mammals, including Pacific walruses and polar bears.
Shell nevertheless managed to drill another exploratory well in 2015. Its problems in the Arctic stemmed more from other factors—notably the short drilling window between seasons when sea ice would cover the drill site.
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The decision in Alaska Oil and Gas Ass’n v. Pritzker is available at http://src.bna.com/jzT
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