FWS Finalizes Changes to ESA Regulations Which Could Limit Consideration of How Climate Change Will Impact Species in the Future

The U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NOAA Fisheries) jointly announced that they had finalized changes to its Endangered Species Act (ESA) regulations, including provisions that limit the extent to which climate change impacts can be relied upon as a basis for determining whether a species should be listed as a “threatened species” under the Act.

The Act requires the Services to analyze whether a species is likely to become an endangered species within the “foreseeable future” when determining whether to list that species as “threatened.” The proposed rule changes would define “foreseeable future” to extend “only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely.” Limiting the “foreseeable future” to a timeframe where potentially harmful conditions are “likely” may prevent the Services from considering long-range climate change projections in analysis of threats to the species.

The new standard may also make it easier for the Services to avoid designating critical habitat for species affected by climate change and limit the designation of critical habitat in areas not presently occupied by species—a limitation which could negatively impact species that need to migrate in response to changing climatic conditions.

The Services announced the finalized regulations on August 12, 2019. The regulations will go into effect 30 days after they are published in the Federal Register.