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The Endangered Species Act (ESA) directs the agency to determine the likelihood of a species' endangerment based on one or more statutory factors: (1) the present or threatened destruction of a species' habitat or range; (2) overutilization of the species for commercial, recreational, scientific, or educational purposes; (3) disease or predation; (4) the inadequacy of existing regulatory mechanisms; or (5) other natural or manmade factors affecting its continued existence, 16 U.S.C.S. § 1533(a)(1). Significantly, the ESA does not require an agency to quantify population losses, the magnitude of risk, or a projected extinction date or extinction threshold to determine whether a species is more likely than not to become endangered in the foreseeable future.
The National Marine Fisheries Service ("NMFS") used climate projections to determine that the loss of sea ice over shallow waters in the Arctic would leave the Pacific bearded seal subspecies (Erignathus barbatus nauticus) endangered by the year 2095. Plaintiffs filed lawsuits challenging the listing decision under the ESA citizen suit provision and the Administrative Procedure Act. The district court ruled that NMFS's listing decision was arbitrary and capricious
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 ESA?
The court held that the NMFS provided evidence of significant sea ice loss from 2007 to 2050, and observational data confirmed that the amount of summer sea ice in the areas populated by the seals was 40% below the long-term average. NMFS provided a reasonable and scientifically supported methodology for addressing volatility in its long-term climate projections, and it represented fairly the shortcomings of those projections. The NMFS's decision to adopt a foreseeability analysis that was responsive to new, reliable research while accounting for specific factors was consistent with the ESA’s mandate. NMFS complied with its obligations under the ESA to provide the State of Alaska with a written justification.