Law 548EInternational Environmental Law Holden Agnew-Pople

The Endangered Species Act of 1973: A Viable Backdoor Means to Mitigate Climate Change? INTRODUCTION The fact that global surface temperatures are rising drastically is by no means a revelation to anybody anymore. This fact is frequently communicated to people in newspapers, radio and television transmissions, and online. Additionally, people are able to perceive rising global surface temperatures themselves: until very recently, Michigan winters, for example, were a lot colder, a lot snowier, and a lot icier. A primary cause of Earths increasing surface temperatures is the escalation of greenhouse gas emissions.1 Until the start of the last century, the level of greenhouse gases present in the atmosphere had been stable for a period of about 10,000 years.2 As a result, equilibrium existed between the net incoming solar radiation at the top of the atmosphere and the net outgoing infrared radiation.3 When the last century began, however, humankind began to be responsible for the emission of extraordinary amounts of greenhouse gases into the atmosphere.4 The increased level of these gases has resulted in greater absorption of outgoing infrared radiation, which ultimately increases Earths surface temperatures.5 The most prevalent greenhouse gas that is emitted into the atmosphere is carbon dioxide. About 90 per cent of greenhouse gas emissions consist of this gas.6 Carbon dioxide emissions

See William C. G. Burns & Hari M. Osofsky, Overview: The Exigencies that Drive Potential Causes of Action for Climate Change, in ADJUDICATING CLIMATE CHANGE: STATE, NATIONAL, AND INTERNATIONAL APPROACHES 1, 3 (William C. G. Burns & Hari M. Osofsky eds., 2009). 2 Id. 3 Id. 4 Id. 5 Id. 6 Id. at 4.

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result from, among other things, fossil fuel combustion, cement production, and land-use change.7 If Earths leaders continue to ignore the problem of escalating greenhouse gas emissions, atmospheric concentrations of greenhouse gases are expected to reach twice preindustrial levels by the middle of this century.8 According to the Intergovernmental Panel on Climate Change, this would raise the global temperature about 3C.9 The result of this would be the end of the world as we know it: the resilience of many ecosystems would be overcome, natural disasters would become more frequent and much more severe, deadly diseases would increase in number and severity, food production would decrease, and the resulting cost to the global economy could be as high as hundreds of trillions of dollars.10 Taking the aforementioned information into account, it is unclear why Earths leaders have not meaningfully responded. What is clear, however, is that the United States will have to play a large role in the necessary mission to reduce greenhouse gas emissions. This is because the United States is responsible for about one-fifth of Earths carbon dioxide emissions.11 Unfortunately, Congress cannot be relied on to insure the United States reduces its greenhouse gas emissions. Any comprehensive climate change measure would be far too controversial to make its way through the death chamber that is the 113th Congress (virtually no meaningful bills get passed anymore). Fortunately, however, there appears to be a backdoor way available to mandate the reduction of greenhouse gases: the Endangered Species Act of 1973.

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Id. at 3-4. Id. at 6. 9 Id. 10 Id. at 7-10. 11 Carbon Dioxide Emissions (CO2), Thousand Metric Tons of CO2 (CDIAC), MILLENNIUM DEVELOPMENT GOALS INDICATORS (July 1, 2013), http://mdgs.un.org/unsd/mdg/SeriesDetail.aspx?srid=749&crid=.

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In this essay, I shall argue that the Endangered Species Act of 1973 is a good option available to Americans to mandate the reduction of greenhouse gas emissions in the United States. I. BACKGROUND The Endangered Species Act of 1973 (ESA) is the ultimate legislation for the preservation of federally-recognized threatened12 and endangered13 species within the United States, particularly the latter. It puts the interests of these species before all other interests. A species is recognized by the federal government as threatened or endangered if it is listed as either under the ESA.14 The United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) are charged with the decision whether a species situation warrants its being listed.15 A species is to be listed by the FWS or NMFS as threatened or endangered if the best available science dictates its existential situation meets the definition of either, respectively.16 Once a species is listed under the ESA, it has two principal means of protection available to it. One is Section 7 of the Act; the other is Section 9 of the Act. A. Section 7 and the Governments Duty Not to Jeopardize a Protected Species

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A species is threatened if it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. 16 U.S.C.A. 1532(20) (West, WestlawNext through P.L. 113 -47). 13 A species is endangered if it is in danger of extinction throughout all or a significant portion of its range. 16 U.S.C.A. 1532(6) (West, WestlawNext through P.L. 113-47). 14 Brendan R. Cummings & Kassie R. Siegel, Biodiversity, Global Warming, and the United States Endangered Species Act: The Role of Domestic Wildlife Law in Addressing Greenhouse Gas Emissions , in ADJUDICATING CLIMATE CHANGE: STATE, NATIONAL, AND INTERNATIONAL APPROACHES 145, 163 (William C. G. Burns & Hari M. Osofsky eds., 2009). 15 Id. 16 Id. at 164.

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The United States Supreme Court case Tennessee Valley Authority v. Hill is the ultimate authority regarding Section 7s scope. In this seminal case, the United States Supreme Court adjudicated (i) whether the ESA requires the judiciary to halt the construction and operation of a dam when the Secretary of the Interior of the United States has determined that its operation would cause an endangered species to become extinct and (ii) whether continued congressional appropriations for the construction of the dam after the ESA was passed constituted an implied repeal of it, at least with respect to the dam.17 The background of Tennessee Valley Authority is as follows. The Tennessee Valley Authority, a wholly-owned public corporation of the United States, commenced construction of the Tellico Dam and River Project in 1967 on the Little Tennessee River, near the location where it converges with the Big Tennessee River.18 When completed, the dam and overall project would have stimulated shoreline development, generated sufficient electric current to heat 20,000 homes, provided flatwater recreation and flood control, and, overall, improved economic conditions in the area.19 To have accomplished all this, however, it would have been necessary to have converted the rivers shallow, fast-flowing waters into a deep reservoir about 30 miles long.20 In 1973, an ichthyologist named Dr. Etnier discovered a species of fish called the snail darter where the Little Tennessee River and the Big Tennessee River converge.21 The snail darter was listed as an endangered species on October 8, 1975.22

17 18

Tenn. Valley Auth. v. Hill, 437 U.S. 153, 156 (1978). Id. at 157. 19 Id. 20 Id. 21 Id. at 158. 22 Id. at 161.

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In February 1976, acting on the information that the Tellico Dam and River Project would destroy the snail darters habitat and therefore make the species extinct,23 the plaintiffs sought to halt the completion and operation of the dam under the ESA.24 By this point, however, years of labor and about $100 million had been expended on the dam.25 It was just about complete.26 Despite these facts, the United States Supreme Court granted the plaintiffs the relief they sought.27 While the Court noted that the enjoinment would cause the loss of the anticipated benefits of the project and millions of dollars, it held that the language and legislative history of the ESA unequivocally indicate that Congress meant for endangered species to be given primacy.28 As to the statutory language, the Court pointed out that Section 7 of the ESA unequivocally command[s] all federal agencies to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of an endangered species or result in the destruction of habitat of such species.29 The Court emphasized that [t]his language admits of no exception.30 Therefore, the language of Section 7 mandated that the construction and subsequent operation of the dam be halted, which would have resulted in the extinction of the snail darter.31 Regarding the legislative history, the Court held it unequivocally indicates Congresss intention to make endangered species the highest of the countrys priorities. The theme during all

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Id. at 161-62. Id. at 164. 25 Id. at 166. 26 Id. 27 Id. at 172. 28 Id. at 174. 29 Id. at 173 (quoting 16 U.S.C. 1536(a)(2) (1976)). 30 Tenn. Valley Auth., 473 U.S. at 173. 31 Id. at 173-74.

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discussions of the ESA was the overriding need to devote whatever effort and resources were necessary to avoid further diminution of national and worldwide resources;32 an earlier qualification that federal agencies should seek to preserve endangered species only insofar as is practicable and in a manner consistent with their primary purpose was criticized for being construable as a declaration that other agency purposes are more important than the protection of endangered species and subsequently removed;33 and the manager of the bill in the House of Representatives, Representative Dingell, made it clear that the unequivocal, restrictive language of Section 7 was not inadvertent by having stated it was necessary to preclude the federal governmental agencies from making excuses for their would-be dereliction of duty to protect endangered wildlife from threats posed by their actions.34 Therefore, Section 7s purpose requires that the dams completion and subsequent operation be halted.35 The fact that Congress had continued to support the construction of the Tellico Dam after having passed the ESA did not constitute an implied repeal of the act, even insofar as it applied to the dam, the Court then went on to hold.36 This is because to repeal a statute, the intention of Congress must be clear and manifest, and the fact that Congress continued appropriate funds for the dam after the statute was passed does not meet that standard.37 This is especially the case when a claimed repeal rests on an Appropriations Act.38 To recapitulate, a federal agency may not authorize, fund, or carry out any action that either jeopardizes the continued existence of an endangered species or will lead to the destruction

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Id. at 177. Id. at 181-83. 34 Id. at 183-84. 35 Id. at 184. 36 Id. at 189. 37 Id. 38 Id. at 190.

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of an endangered species habitat. No exceptions! Not even when a big, important dam that is almost complete is at stake and the endangered species at issue is an obscure fish that nobody knew of until recently and nobody really cares about. What a comprehensive piece of legislation for the preservation of endangered species the ESA is! But what about actors that are not federal agencies? Are private entities not the biggest threat to Americas endangered species? The statute deals with private entities, too, in Section 9. B. Section 9 and Its Prohibition Against Private Entities Taking of Endangered Species To become cognizant of Section 9s ambit, one must look to the United States Supreme Court case Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. Here, the United States Supreme Court adjudicated whether the United States Secretary of the Interior exceeded his authority under the ESA by having promulgated a regulation that defined Section 9s prohibition on takings of endangered species to include significant habitat modification or degradation where it actually kills or injures wildlife.39 Section 9(a)(1)(B) of the ESA makes it unlawful for anybody subject to the jurisdiction of the United States to take any [endangered species] within the United States or the territorial sea of the United States.40 Elsewhere in the ESA, the term take is defined as meaning to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.41 The Act does not, however, further define the terms it uses to define take.42 Therefore, the United States Department of the Interior defined the term in 1975 in order to effectuate the provision: Harm in the definition of take in the Act means an act which
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Babbitt v. Sweet Home Chapter of Cmtys. for a Great Oregon, 515 U.S. 687, 690 (1987). Id. at 691 (quoting 16 U.S.C.A. 1538(a)(1)(B) (West, WestlawNext through P.L. 113-47)). 41 Babbitt, 515 U.S. at 691 (quoting 16 U.S.C.A. 1532(19) (West, WestlawNext through P.L. 113-47)). 42 Babbitt, 515 U.S. at 691.

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actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.43 The definition of harm that was devised by the United States Department of the Interior was challenged by groups who were economically disadvantaged as a result of its application to their activities effects on the red-cockaded woodpecker, an endangered species, and the northern spotted owl, a threatened species.44 Specifically, these groups argued that, contrary to the Department of the Interiors belief, Congress did not intend the word take in Section 9 of the ESA to include habitat modification.45 The United States Supreme Court ruled against them.46 First, the Court held that the text of the ESA supports the Secretary of the Interiors definition of harm.47 One reason is that an ordinary understanding of the word harm supports it.48 To modify a species habitat is undoubtedly to harm it.49 Another reason is that the broad purpose of the ESA supports the Secretary of the Interiors definition of harm. The plain intent Congress had for the ESA is to halt and reverse the trend toward species extinction, whatever the cost.50 A third reason is that, in 1982, Congress authorized the Secretary of the Interior to issue permits for takings that Section 9(a)(1)(B) would otherwise prohibit so long as such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.51 This

43 44

Id. (quoting 50 CFR 17.3 (1994). Id. at 692. 45 Id. at 693. 46 Id. at 695. 47 Id. at 697. 48 Id. 49 Id. 50 Id. at 699. 51 Id. at 700 (quoting 16 U.S.C.A. 1539(a)(1)(B) (West, WestlawNext through P.L. 113-47)).

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implies that Congress meant for Section 9(a)(1)(B) to apply to indirect takings via habitat modification.52 Second, the high level of authority the ESA gives the Secretary of the Interior to enforce the statute, together with the high degree of regulatory expertise needed to enforce the ESA, makes it clear that the judiciary owes deference to the Secretary of the Interiors reasonable interpretation of the word harm.53 Third, the Court held that the ESAs legislative history supports the Secretary of the Interiors definition of harm.54 The Committee Reports that accompanied the bills that became the ESA made clear that Congress intended take to apply to indirect harmful actions to endangered species, such as habitat modification, in addition to purposeful harmful actions, such as the actions of hunters and trappers.55 The lesson of Babbitt, then, is that the Secretary of the Interior has the power to order a private entity to stop an activity that directly or indirectly harms an endangered species. As is the case with Section 7, utilitarian principles are not taken into account: the endangered species survival interest is the ultimate trump card. ARGUMENT The ESA is a good option for regulating the emission of greenhouse gases in the United States. Some of the endangered species the ESA protects face the prospect of extinction as a result of the increasing level of greenhouse gas emissions. Therefore, the levels of greenhouse gases that are emitted within the United States are subject to control by the ESA. Recall that
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Babbitt, 515 U.S. at 700. Id. at 703. 54 Id. at 704. 55 Id.

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Section 7 of the ESA commands all federal agencies to insure that actions they authorize, fund, or carry out do not jeopardize the continued existence of an endangered species or result in the destruction of an endangered species habitat, and Section 9 of the ESA makes it unlawful for anybody subject to American law to detrimentally significantly modify an endangered species habitat. One endangered species protected by the ESA that faces the prospect of extinction as a result of the increasing level of greenhouse emissions in the United States is the hawksbill turtle.56 This marine turtle species is found throughout the American Caribbean.57 It faces the prospect of extinction in large part because of the relentless decline of coral reef communities.58 The coral reef communities on which the hawksbill turtle depends for survival are being rapidly depleted as a result of climate change,59 which is in turn caused by prodigious greenhouse gas emissions. Coral reef ecosystems are very sensitive to temperature.60 Elevated sea temperatures degrade coral reef ecosystems by causing the expulsion of symbiotic algal zooxanthellae.61 This process is known as bleaching.62 To give an example of the deleterious effects of bleaching, in 1998, which was at the time the warmest year on record, bleaching occurred in every ocean and resulted in the demise of between 10 to 16 per cent of living coral.63 Then in 2005, which

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Endangered and Threatened Marine Species, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION (Nov. 22, 2013), http://www.nmfs.noaa.gov/pr/species/turtles/hawksbill.htm. 57 Id. 58 Id. 59 Id. 60 See Cummings & Siegel, supra note 14, at 149. 61 Id. 62 Id. 63 Id. at 150.

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surpassed 1998 as the warmest year on record, 20 per cent of then-living coral were killed.64 The Caribbeans coral reefs have been dying most quickly in recent years, and [i]t will not take many more episodes like the 2005 bleaching event before living coral reefs in the Caribbean disappear entirely.65 Taking the above information into accountthat is, i) the hawksbill turtle is endangered because in large part of the rapid decline of coral reef communities in the American Caribbean and ii) the demise of coral reef communities in the American Caribbean is the result of rising sea temperatures, brought about by increased greenhouse gas emissionsthere are two possible ways the ESA can be used to mandate the reduction of greenhouse gas emissions in the United States. One way is through Section 7 of the ESA, and the other way is through Section 9 of the ESA. The seemingly most appropriate way to mandate the reduction of greenhouse gases in the United States through the ESA is using Section 9, which, to reiterate, makes it unlawful for anybody subject to American law to detrimentally modify an endangered species habitat. This is because, unlike Section 7 of the ESA, which only applies to federal governmental agencies, Section 9 applies to everybody within the United States and its territories. The fact that Section 9 has jurisdiction over non-governmental entities, such as power companies and automobilemanufacturer companies, is very important, as private entities are responsible for most greenhouse gas emissions in the United States. Regarding the latter, the transportation sector in

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Id. Id. at 150.

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the United States emitted more than 1.7 metric tons of carbon dioxide into the atmosphere, which amounts to 6 per cent of worldwide carbon dioxide emissions.66 How would the process work? One option is for the United States government to initiate an action to enjoin the major emitters of greenhouse gases to curtail their current emission levels. If the government is disinclined to do so, however, any private party or group of private parties may initiate an action. Section 11(g)(1)(A) of the ESA permits anybody to initiate an action to enjoin a party in violation of the ESA to comply with it.67 What would be the cause of action? Section 9 of the ESA makes it unlawful for anybody subject to American law to detrimentally modify an endangered species habitat, and current greenhouse gas emissions in the United States are destroying the hawksbill turtles habitat, the American Caribbeans coral reefs. Who would be the defendants? As previously mentioned, the current design of automobiles in the United States is big reason such a large level of greenhouse gases are emitted in the country every year. Once again, the transportation sector in the United States emitted more than 1.7 metric tons, or 6 per cent of worldwide carbon dioxide emissions, of carbon dioxide into the atmosphere.68 Therefore, automobile-manufacturing companies within the United States would be ideal defendants. What relief would be sought? As to automobile-manufacturing companies, a greater fuel economy standard would be appropriate relief to seek from a court. A greater fuel economy standard for American automobiles would significantly reduce greenhouse gas emissions in the

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Massachusetts v. Envtl. Prot. Agency, 549 U.S. 497, 524 (2007). 16 U.S.C.A. 1540(g)(1)(A) (West, WestlawNext through P.L. 113-49). 68 See infra note 66.

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country, as automobiles are omnipresent in the United States. In 2011, for example, there were about 250 million registered automobiles in the country.69 Could the destruction of one little-known turtles habitat really bring about the mandate of changed business practices for corporate giants, such as General Motors, Chrysler, and Ford? Pursuant to the United States Supreme Courts holding in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, absolutely. Utilitarian principles, such as the repercussions a court mandate requiring increased fuel efficiency would have, are immaterial. All a court is to consider is i) whether a defendants action detrimentally modifies an endangered species habitat and ii) what action to take to remedy the violation. Despite all the merits of Section 9, there are at least a couple significant drawbacks. One is that, pursuant to Section 10(a)(1)(B), the United States Secretary of the Interior is able to issue permits for takings that Section 9(a)(1)(B) would otherwise prohibit so long as such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. This exception would apply, should the Secretary of the Interior of the United States grant it, to all major greenhouse gas emitters in the United States, including automobile-manufacturing companies, as their takingsdestroying the habitat of hawksbill turtles by causing the emission of large amounts of greenhouse gasesis incidental to carrying out lawful activities. In an administration like the Bush administration, then, major greenhouse gas emitters would have nothing to fear from Section 9, as the Secretary of the Interior in such an administration, unconcerned with and even hostile to environmental concerns, would be more than happy to issue permits for takings to them. If someone like Al Gore were to be elected President, however,
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Table 1-11: Number of U.S. Aircraft, Vehicles, Vessels, and Other Conveyances , U.S. DEPT TRANSP., http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/publications/national_transportation_statistics/html/table_01_1 1.html (last visited Nov. 25, 2013).

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Section 9 would work like a dream, so to speak, as the Secretary of the Interior in such an administration, which would zealously fight for our Mother Earth, would presumably be loath to issue permits for such takings to major greenhouse gas emitters. A second drawback of Section 9 is that, unless the government were to initiate an action under it, it pits David against Goliath, so to speak. For example, a lot of actors are responsible for the emission of greenhouse gases that cause the demise of coral reef communities in the Caribbean. One cannot sue all of them, as that would require too great a number of resources. Therefore, difficult tactical choices would have to be made about which ones to file an action against. Additionally, it would be very expensive to carry out an action against major greenhouse gas emitters. They are sure to put up a big defense, as they have the means to do so and a lot at stake for them. Also, there would be numerous defendants, and numerous defendants leads to complexity, which in turn means bug bucks are going to be needed to resolve all the facets of that complexity. It appears, then, that Section 7 of the ESA is the better means of mandating the reduction of greenhouse gases in the United States. Despite the fact Section 7 only applies to the federal governmentfederal agencies are commanded to insure that the actions they authorize, fund, or carry out do not jeopardize the continued existence of an endangered species or result in the destruction of an endangered species habitatthis is not problematic. For example, the National Highway Transportation Safety Administration is responsible for setting the corporate average fuel economy standards for cars and light trucks via regulation.70 Since the transportation sector is responsible for a large portion of greenhouse gas emissions in the United States,71 the standard at which the corporate average fuel economy standards are currently set reduce appreciably the

70 71

Cummings & Siegel, supra note 14, at 168. See infra p. 11.

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likelihood of species survival for the hawksbill turtle.72 Similarly, every five years the Minerals Management Service makes decisions regarding all the offshore oil and gas leasing within the United States.73 The greenhouse gases that are generated as a result of the production and use of the billions of barrels of oil approved by the Mineral Management Service are very appreciable.74 As is apparent, then, by using Section 7 to directly control the governments actions that affect greenhouse gas emissions, one is also indirectly controlling private entities actions regarding greenhouse gas emissions, for the federal government, through its agencies, sets the parameters within which private entities must operate. How does one get the federal agencies to act pursuant to Section 7 and insure that the actions they authorize, fund, or carry out do not jeopardize the continued existence of an endangered species or result in the destruction of an endangered species habitat? Like Section 9 of the ESA, the citizen suit provision applies to Section 7. Section 11(g)(1)(C) permits anybody to initiate an action against the United States and any other governmental instrumentality or agency for violating Section 7.75 What would be the cause of action? Section 7 of the ESA compels the federal agencies, in consultation with and with the assistance of the Secretary of the Interior of the United States, to insure that any actions they authorize, fund, or carry out do not jeopardize the continued existence of any endangered species or result in the destruction of an endangered species

72

Cummings & Siegel, supra note 14, at 168. The fact that the standard at which the corporate average fuel economy standards are currently set reduce appreciably the likelihood of species survival for the hawksbill turtle is significant, because, pursuant to C.F.R. 402.02, to jeopardize an endangered species means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction numbers, or distribution of that species. Id. 73 Id. 74 Id. at 169. 75 16 U.S.C.A. 1540(g)(1)(A) (West, WestlawNext through P.L. 113-49).

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habitat. Currently, the agencies are violating this section, as at least some of the actions some agencies authorize jeopardize the continued existence and contribute to the destruction of the habitat of the hawksbill turtle. For example, the National Highway Transportation Safety Administration authorizes actions that jeopardize the continued existence of the hawksbill turtle and contribute to the destruction of its habitat by setting the bar low for the corporate average fuel economy standards with which manufacturers of cars and light trucks must comply. What relief would be sought? As to the National Highway Transportation Safety Administration, one would likely seek a court mandate for a much higher corporate average fuel economy standard for cars and light trucks. As is the case with Section 9, Section 7 has the ability to mandate unpopular and allegedly uneconomical environmental policy changes. This was made clear in Tennessee Valley Authority v. Hill, where the Tellico Dam and River Project, which had cost about $100 million and had congressional support, was shut down to protect the snail darter. Unlike Section 9, however, exemptions are not permitted in any circumstances. Also, there is only one defendant, the government, which makes it easier to file an action under the ESA. III. CONCLUSION In conclusion, the ESA appears to provide a promising means to mandate lower greenhouse gas emissions in the United States. This is because, under the ESA, no bartering, a seemingly impossible task for todays federal government, needs to be done to accomplish the objective. Rather, the necessary automechanisms are already in place in Sections 7 and 9 of the ESA.
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All that in theory is needed is the service of environmentally-conscious lawyers willing to file actions to enjoin compliance with the ESA. This should not be much of a problem, as the United States does not have a short supply of exceptional lawyers who are idealists and strive to make tomorrows America a better place for everybody.

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