Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries, No. 14-35806, 2016 U.S. Dist. LEXIS 32002 (9th Cir. Oct. 24, 2016)
On October 24, 2016, the Ninth Circuit overturned a lower court’s decision regarding National Marine Fisheries Service’s (NMFS) authority to use long-term climate projections to justify listing the Pacific bearded seal (erignathus barbatus nauticus) as threatened. While the lower court—the United States District Court for the District of Alaska—had concluded that using such long-term climate projections amounted to “hollow speculation,” the Ninth Circuit held instead that the models on which NMFS relied “reasonably supported the determination that a species reliant on sea ice likely would become endangered in the foreseeable future.” Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries, No. 14-35806, 2016 U.S. Dist. LEXIS 32002, 16 (9th Cir. Oct. 24, 2016). Moreover, according to the court, the administrative record demonstrated a “reasonable evidence-based justification” for these predictions.
Originally, several parties including the Alaska Oil & Gas Association, the State of Alaska, and the North Slope Borough, filed an administrative action challenging the NMFS’ decision and claiming it violated the Administrative Procedure Act (APA). More specifically, the plaintiffs argued that:
- Instead of using climate projections to the year 2050, as had been its typical practice, the NMFS arbitrarily included longer-term climate projections;
- The NMFS failed to provide an evidence-based explanation for the relationship between habitat loss and the species’ survival; and
- The NMFS failed to demonstrate that the impact of climate change on the species “will be of a magnitude that places the species ‘in danger of extinction.’”
Following the Ninth Circuit’s decision in October 2016, the Alaska Oil & Gas Association filed a Petition for a Writ of Certiorari with the United States Supreme Court on July 21, 2017 (No. 17-118). The State of Wyoming and Alaska Federation of Natives filed amicus briefs on August 21, 2017. On October 26, 2017, the Supreme Court issued an Order further extending time to file responses to the Petition for Writ of Certiorari until November 27, 2017.
Significance of the case:
In its decision, the Ninth Circuit stated: “This case turns on one issue: When NMFS determines that a species that is not presently endangered will lose its habitat due to climate change by the end of the century, may NMFS list that species as threatened under the Endangered Species Act?” By answering this question in the positive, the Ninth Circuit may have opened the door to allow a considerable number of otherwise currently healthy species to listing under the ESA based on long-term projections based on a sizeable number of potentially speculative assumptions.
- Ninth Circuit Decision – Alaska Oil & Gas Ass’n v. Nat’l Marine Fisheries, No. 14-35806, 2016 U.S. Dist. LEXIS 32002, 16 (9th Cir. Oct. 24, 2016)