FWS calls wolverine threatened, but protection has no teeth

Posted: Feb 22, 2020


Climate change is putting animals all over the United States—and the world—at risk. Rising sea levels, dwindling sea ice and snowpack, drought, heat waves, and migration are all happening at an alarming rate. According to a recent report released by the National Wildlife Foundation, “[w]ithout significant new steps to reduce carbon pollution, our planet will warm by 7 to 11 degrees Fahrenheit by the end of the century, with devastating consequences for wildlife.” The report looked at climate change projections from eight regions of the United States, and found that “from sand cranes to sea turtles, animals face a changing world on a warming planet as their homes are transformed by climate change.”

Steps towards clean energy and pollution reduction have been discussed for decades, but the problem of global warming is so abstract for many that little has been done to regulate it, despite commendable efforts by scientists and advocacy groups.

The listing of polar bears as threatened in 2008 was not the first listing as a result of climate change-related factors, but it quickly became the poster child for this debate. Although a study released in 2010 suggested that reducing greenhouse gas emissions could save the polar bear, federal officials have done little to regulate greenhouse gases, and generally have been unwilling to use an animal’s status as threatened or endangered under the ESA to regulate greenhouse gases like CO2.

Although the Obama administration has expressed a commitment to combating climate change, which has garnered support in the Senate, the Republican-controlled House of Representatives in particular has been pushing back.

Many were dissatisfied with the Obama administration’s response to environmental issues in his first term in office. Although environmental groups were happy to learn in 2008 that the Obama administration had reversed a Bush administration rule that weakened the scientific process under section 7 of the ESA, Obama also upheld the infamous “special polar bear rule,” another leftover from the Bush administration. This rule effectively banned consideration of outside effects, such as climate impacts, when listing animals under the ESA. This rule applied to polar bears, but not other animals listed because of climate change factors.

Environmental groups and advocates have gone far enough to say that actions by the Obama and Bush administrations, such as the polar bear rule, are illegal (including Kassie Siegel, climate program director at the Center for Biological Diversity). Sound science that global warming does exist and will affect wildlife directly and indirectly should color the government’s interpretation and application of the ESA and other protective statutes.

Although much has been written about the polar bear and climate change, the wolverine also presents a revealing case study in the interaction between climate change, wildlife, and the protections offered by the ESA. The FWS proposed listing wolverines in the lower 48 states as “threatened” under the ESA in February of 2013.

The proposed listing would prevent hunting and trapping of wolverines for their fur, but many believe the bigger problem—the impacts of climate change on the wolverine’s habitat—remains unsolved. Wolverines need at least 5 feet of snowpack in order to make dens in which they can birth and raise their cubs (also known as “natal denning”). Rising temperatures have led to a decrease in snowpack, which eventually could lead to the extinction of the wolverine. According to the FWS, “[g]lobal warming, which will diminish snowfall and cause earlier spring melt, could reduce wolverine habitat in the lower 48 states by 31% over the next three decades and by 63% over the next 75 years.”

The FWS has refused to regulate other human activities like logging and the use of oversnow vehicles because those activities have not been found to significantly threaten wolverines. And perhaps this is right—preventing those activities won’t get at the heart of the problem, which is reduced snowpack for natal denning. As Noah Greenwald, the endangered species director at the Center for Biological Diversity said in a recent statement, “I’m glad wolverines are finally getting the protection they need to survive, but if we’re going to save the wolverine and countless other wildlife species, as well as the world we all depend on, we need to take immediate steps to substantially and quickly reduce our greenhouse gas emissions.”

While it is true that the ESA was not passed for the purpose of regulating climate change, the legal argument that it could now be applied to the issue is not unreasonable. A number of environmental organizations have been campaigning for the FWS to regulate greenhouse gas under the ESA. Recent listings, such as that of the polar bear and the wolverine, have been brought on as a result of lawsuits brought by environmental groups whose ultimate goal is to influence FWS policy on climate change.

Among the criticisms of listing on this basis is that arguments about climate change are not based on current science, but rather projection. In other words, since the habitat in question has not been destroyed yet, a decision to list based solely on the future effects of climate change is indefensible. However, at this point the science is there to support the fact that climate change is happening and will continue to happen, and these arguments seem like they are coming from a perspective of denial or willful blindness to the problem.

A more convincing argument against using the ESA in this context could be simply that the problem is so widespread that this will not make a significant enough difference to warrant a change in regulation. As FWS spokesman Bruce Woods said, the ESA is not an appropriate tool for regulating greenhouse gas emissions because they operate on a global scale. While it is true that changing the standards in the United States alone will not solve the problem, if every country were to take this approach, the situation would never improve.

Even if the ESA is not an appropriate means to regulate, then an appropriate means must be created. Until then, I see no reason why existing law cannot be interpreted to protect animals from new threats.

Perhaps a recent case, Massachusetts v. EPA, could serve as guidance for government agencies and environmental groups attempting to include CO2 in their interpretation of the ESA. In that case, a number of cities, states, and advocacy groups sued the EPA in order to force the agency to regulate greenhouse gases—most notably CO2—as pollutants under the Clean Air Act.

Much like the FWS in the situation at hand, the EPA had determined earlier that regulating CO2 did not belong under the Clean Air Act. The definition of pollutant in the Clean Air Act is fairly broad—basically any air pollutant that causes or contributes to endangerment of the public health or welfare. The Court indicated that this sweeping definition was meant to further the intent of the statute—protecting human health—and the EPA could not use policy considerations to hide from their responsibilities. It remanded the case to the agency to come up with a better justification for inaction, or to begin regulating in this area—which it did.

Dissents from Justice Scalia and Chief Justice Roberts in Massachusetts v. EPA expressed similar arguments that the current administration has made to put off using the ESA to regulate CO2. Climate change on a global scale is too big, too abstract, and regulating it was simply not in the intent of the framers of the CAA. However, the broad interpretation of the Act carried the day.

In the tradition of Massachusetts v. EPA, some commentators have argued that “it is incumbent on all federal regulatory agencies to assess how global climate change is to be integrated into their respective regulatory programs.” Hiding behind policy considerations is no longer a justifiable approach to this problem. The FWS could argue that the ESA, like the CAA, contains a sweeping definition of what the agency can do in order to fulfill its purpose—protecting against threats and endangerment to species—and that it should be able to regulate CO2 under that framework for the same reasons.

While reexamining the role of the ESA as a shield against climate change may not be the politically popular approach, there is no alternative for animals like the wolverine. They are facing extinction. How effective will reintroduction be as a remedy if newly reintroduced animals face similar difficulties with natal denning? Although the listing has been referred to as the wolverines’ “best possible chance to survive in a warming world,” that is simply not enough.

In the case of the wolverine, I am not sure there is a way for that species to survive unless it adapts to the point that it no longer relies on deep snow for natal denning. In the short term, the FWS should be empowered to conserve critical habitat more quickly and on a much larger scale in order to help the species adapt. Without assistance from the FWS, climate change may force the wolverine into extinction before those changes can take place.

Even assuming the campaign to use the ESA is ultimately successful, I wonder what regulatory approaches the FWS would use in order to protect listed animals. It is true that much of the deadlock on moving forward on climate change has been political, but there is also ongoing scientific and policy debate over what methods are best suited to handle the problem—perhaps most prominently in the news has been the debate over the relative benefits and disadvantages of a cap on CO2 emissions as compared to a carbon tax. Given the power to use the ESA in this way, is it even possible to use the ESA’s legal framework to combat climate change, or is more required?

I think groups campaigning for this change in regulatory structure could strengthen their arguments if they fleshed out these ideas more, so that if and when this change is made, they have the structure in place to move forward. These structural plans must, in turn, be accompanied by funding proposals—such as a carbon tax—because it will be expensive to make the necessary changes.

These are difficult problems to tackle, but a step in the right direction would be for land agencies as a whole to consider what the best management policies are moving forward with particular emphasis on the effects of climate change on biodiversity. Crucial to the success of any new regulatory regime is better “integrat[ing] research with management.” Environmental groups and agencies should continue gathering information about these risks and using it effectively in their advocacy for replacing dependence on fossil fuels with new renewable energy options. Of course, agency action would be more successful if it was accompanied by strong executive directives or the cooperation from a unified Congress, but that may be a little too much to hope for in the short term. Unfortunately, with climate change progressing at the rate that it is, some of these animals might not have long.

~ Emi Estelle

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