{"id":17942,"date":"2023-06-06T11:02:25","date_gmt":"2023-06-06T16:02:25","guid":{"rendered":"https:\/\/blogs.law.columbia.edu\/climatechange\/?p=17942"},"modified":"2023-06-06T11:02:25","modified_gmt":"2023-06-06T16:02:25","slug":"using-attribution-science-to-evaluate-the-effects-of-oil-and-gas-emissions-on-endangered-and-threatened-species","status":"publish","type":"post","link":"https:\/\/blogs.law.columbia.edu\/climatechange\/2023\/06\/06\/using-attribution-science-to-evaluate-the-effects-of-oil-and-gas-emissions-on-endangered-and-threatened-species\/","title":{"rendered":"Using Attribution Science to Evaluate the Effects of Oil and Gas Emissions on Endangered and Threatened Species"},"content":{"rendered":"
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Photo by Hans-Jurgen Mager<\/a> on Unsplash<\/a><\/figcaption><\/figure>\n

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Earlier this year, the Bureau of Land Management (BLM) was sued for its approval<\/a> of a major oil drilling operation known as the \u201cWillow project\u201d. The project is controversial due to its contribution to greenhouse gas (GHG) emissions and its location on the North Slope of Alaska, which happens to be the largest undisturbed track of public land in the U.S. and an area that is highly sensitive to climate change. BLM estimates that the project will produce up to 576 million barrels of oil over its 30-year lifetime, resulting in indirect emissions totaling 239 million metric tons of carbon dioxide (CO2<\/sub>) equivalent. The project will also contribute to \u201ccarbon lock-in<\/a>\u201d \u2013 the process by which expanding oil and gas infrastructure causes continued dependence on fossil fuels.<\/p>\n

Environmental organizations and an indigenous group filed two lawsuits<\/a> challenging BLM\u2019s decision to move forward with the Willow project. One of the allegations raised in both<\/a> complaints<\/a> is that BLM violated the Endangered Species Act (ESA) because it did not evaluate whether the GHG emissions attributable to the project could affect the survival and recovery of ESA-listed species, specifically polar bears, Arctic ringed seals, and bearded seals all of which care \u201cice dependent\u201d species that are uniquely affected by increasing temperatures and sea ice loss in the Arctic. BLM\u2019s decision to exclude GHG emissions from its ESA jeopardy analysis can be traced back to a 2008 legal opinion for the Department of Interior (DOI) which declared that it is impossible to establish a causal connection between project-level emissions and harm to specific species and their habitats. The legality of this position has also been challenged in another active lawsuit<\/a> involving DOI\u2019s approval of over 3,500 drilling permits in New Mexico and Wyoming.<\/p>\n

Scientists, conservation groups, and legal experts have argued<\/a> that the 2008 policy was and continues to be \u201cboth scientifically and legally incorrect\u201d because there are scientific techniques and data that can be used to evaluate the effect of project-level emissions on threatened and endangered species. Most notably, climate change detection and attribution researchers have developed methods for quantifying the relationship between a specific quantity of GHG emissions and specific impacts of climate change. As detailed below, this type of research could be used by decision-makers to evaluate the extent to which a project like Willow will exacerbate climate change-related threats to ice-dependent species.<\/p>\n

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The Legal Context: ESA Consultations and Jeopardy Determinations<\/u><\/h3>\n

Section 7 of the ESA<\/a> requires federal agencies to ensure that the projects they implement, fund, or authorize will not jeopardize the continued existence of any species that is listed as endangered or threatened. This is accomplished through scientific consultation<\/a> with the Fish and Wildlife Service (FWS) and\/or National Marine Fisheries Service (NMFS), depending on which service has jurisdiction over the relevant species. An agency must initiate a Section 7 consultation for any federal action that \u201cmay affect\u201d a listed species or its critical habitat.<\/p>\n

This language sets a relatively low bar for consultations. According to the Ninth Circuit, \u201c[a]ny possible effect, whether beneficial, benign, adverse, or of an undetermined character\u201d triggers the requirement. See <\/em>Karuk Tribe of California v. USFS (9th Cir. 2012)<\/a>; Cal. ex rel. Lockyer v. USDA, (9th Cir. 2009)<\/a>. Once consultation is initiated, the responsible agency must work with FWS or NMFS to evaluate whether the action may cause jeopardy to a species, i.e., whether the action \u201creasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species\u2026 by reducing the reproduction, numbers, or distribution of that species.\u201d 50 C.F.R. \u00a7 402.02<\/a>. The jeopardy analysis must be based on the best available scientific data. ESA \u00a7 7(a)(2)<\/a>. A federal agency cannot proceed with an action that would cause jeopardy unless the project receives an exemption from a special committee<\/a> of cabinet officials known as the \u201cGod Squad\u201d.<\/p>\n

As discussed in previous work<\/a>, federal agencies must consider climate science and climate change-related threats when implementing their duties under the ESA. Courts have held that agencies must consider how climate change is affecting environmental baselines during Section 7 consultations. However, there has not yet been any decision specifically vacating an agency action for failing to assess whether GHG emissions may cause jeopardy.<\/p>\n

The federal government\u2019s justification for ignoring GHG emissions in Section 7 consultations is outlined in a 2008 legal opinion from then-DOI solicitor David Bernhardt (who later served as DOI Secretary under President Trump). The opinion, known as the Bernhardt Memorandum<\/a>, states that project-specific GHG emissions could not pass the \u201cmay affect\u201d test and thus GHG emissions were \u201cnot subject to consultation under the ESA and its implementing regulations.\u201d Bernhardt\u2019s reasoning was that it would be impossible to establish the requisite causal link between GHG emissions, global climate change, and specific localized effects on species and their habitat due to the \u201ccomplex and independent processes active in the atmosphere and the ocean acting on GHGs.\u201d The memo also questions whether the magnitude of the impact from project-level GHG emissions could be large enough to trigger a Section 7 consultation \u2013 even going so far as to assume that any effects attributable to a particular project \u201cwould be too small to physically measure or detect.\u201d<\/p>\n

These views also appear to have influenced some of the regulatory amendments<\/a> promulgated by the Trump administration when Bernhardt was acting as DOI Secretary. The amendments included a new provision<\/a> specifying that agencies should not view an effect as being \u201ccaused\u201d by an action unless there is \u201cclear and substantial information\u201d showing that the effect is \u201creasonably certain to occur,\u201d and that agencies should consider whether the effect is \u201cso remote in time from the action\u201d, \u201cso geographically remote from the immediate area involved in the action\u201d, or \u201conly reached through a lengthy causal chain that involves so many steps\u201d such that the effect is not reasonably certain to occur. 50 C.F.R. \u00a7 402.17<\/a>. The Biden administration is reviewing the Trump-era amendments but has not yet issued a concrete proposal to revise or rescind the provisions on federal consultations and jeopardy determinations.<\/p>\n

The Scientific Context: Climate Change Attribution and Species Impacts<\/u><\/h3>\n

Climate change detection and attribution is a two-step process that involves: (i) detecting changes in the climate system and other interconnected systems, and (ii) determining whether and to what extent those changes were caused by human influence on the climate system. Detection and attribution studies often deal with the aggregate effects of human influence on the climate system \u2013 for example, examining the link between anthropogenic GHG emissions and extreme events. However, detection and attribution methods can also be used to quantify the relationship between a specific GHG contribution and specific consequences of climate change, such as temperature and sea level rise. This approach has been used to assess the responsibility of specific entities, such as national governments and carbon emitting companies, to climate change-related harms.<\/p>\n

Climate scientists have also compiled a substantial body of research on the relationship between anthropogenic climate change and ecological impacts. As detailed in the latest IPCC assessment<\/a>, climate change has already caused \u201csubstantial damages\u201d and \u201cincreasingly irreversible losses\u201d in terrestrial, freshwater, and marine ecosystems across the entire planet. There is very high confidence<\/em> that \u201c[b]iodiversity loss and degradation, damages to and transformation of ecosystems are already key risks for every region due to past global warming and will continue to escalate with every increment of global warming.\u201d Climate change also poses an existential threat to some species, like the polar bear, and the federal government has recognized this when issuing ESA protections for these species.<\/p>\n

There are some contexts in which detection and attribution research could be used to isolate the effects of a particular policy or project on climate change-related risks to species and habitats. For example, there is research on the relationship between GHG emissions and sea ice loss that is directly relevant to the claims raised by the Willow plaintiffs regarding consultation requirements for ice-dependent species like polar bears:<\/p>\n