Projecting the Future: Ninth Circuit Upholds ESA Listing for Bearded Seals
In Alaska Oil & Gas Ass'n v. Pritzker, the U.S. Court of Appeals for the Ninth Circuit recently upheld a rule listing two species of seals as "threatened" under the Endangered Species Act (ESA) based on climate change projections and associated habitat loss from reduction of sea ice. The listing rule concluded that the loss of sea ice over shallow waters in the Arctic would leave the Pacific bearded seal subspecies endangered by 2095. Reversing the U.S. District Court for the District of Alaska, which concluded that the climate projections and modeling were uncertain and unreliable, the appellate court held, in October 2016, that the National Marine Fisheries Service (NMFS) listing decision was reasonable and supported by substantial evidence. The opinion is noteworthy because it allowed the extension of the “foreseeable future” time frame almost 50 years beyond any prior listing decision and reconfirmed that reliance on climate change models, even if uncertain, may constitute "best available science."