Marten Law Group on Pacific Coast Fed'n of Fishermen's Ass'ns v. Gutierrez

Marten Law Group on Pacific Coast Fed'n of Fishermen's Ass'ns v. Gutierrez

In this Expert Commentary, Jessica Ferrell of the Marten Law Group discusses the district court's decision in Pacific Coast Fed'n of Fishermen's Ass'ns v. Gutierrez requiring NOAA Fisheries and the U.S. Fish and Wildlife Service to analyze climate change effects during consultations performed under Section 7 of the Endangered Species Act. As Ms. Ferrell explains, this trend follows similar case law under the National Environmental Policy Act (NEPA) and state NEPA analogues in which courts are increasingly requiring agencies to analyze climate change impacts during environmental assessments. Along with a full account of the case and an examination of its significance, Ms. Ferrell describes future steps that can be taken by the Services to address relevant aspects of climate change effects on species since no concrete guidance has yet been provided on the issue.
 
“The U.S. District Court for the Eastern District of California has now twice held that, where the best available science indicates that climate change could adversely affect listed species or critical habitat, NOAA Fisheries (NOAA) and the U.S. Fish and Wildlife Service (collectively, the “Services”) must analyze that information during consultations performed under Section 7 of the Endangered Species Act (ESA). Pacific Coast Fed’n of Fishermen’s Ass’ns v. Gutierrez (PCFFA v. Gutierrez); Natural Resources Defense Council v. Kempthorne (NRDC v. Kempthorne),” Ms. Ferrell writes.  “This trend follows similar case law under the National Environmental Policy Act (NEPA) and state NEPA analogues in which courts are increasingly requiring agencies to analyze climate change impacts during environmental assessments.
 
“Several listing petitions based on the effects of climate change on certain species are also currently pending before both Services. If these species are listed, the Services may be required to conduct substantive analyses of climate change effects on those species and their habitat during consultations. The PCFFA v. Gutierrez and NRDC v. Kempthorne cases also highlight the increasing competition for water resources between municipal water purveyors, agricultural users, commercial fishing groups, tribes, and federal agencies (particularly, for hydropower and listed fish). Effects such as longer droughts, declines in groundwater recharge, reduced water supplies, and increased water temperatures are occurring in, among other areas, the West, Southwest, Southeast, Gulf, and Mid-Atlantic regions of the United States.
 
“Disputes over water allocation are likely to intensify, especially in drought-prone areas. Significant compromises will be necessary in order to adapt to these resource limitations,” she writes.
 
Subscribers to www.Lexis.com may read much more about the case and its implications by purchasing Ms. Ferrell’s entire expert commentary at Marten Law Group on Pacific Coast Fed’n of Fishermen’s Ass’ns v. Gutierrez.