FWS Proposes Changes to ESA Regulations Which Could Curtail Consideration of Future Climate Change Impacts on Species

The Fish and Wildlife Service (FWS) issued proposed changes to its Endangered Species Act (ESA) regulations which include provisions that would limit the extent to which FWS can rely on climate change impacts as a basis for determining whether a species should be listed as a “threatened species” under the Act.

The Act requires FWS 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 confine that term as follows:

“The term foreseeable future extends only so far into the future as the Services can reasonably determine that the conditions potentially posing a danger of extinction in the foreseeable future are probable.”

Limiting the “foreseeable future” to a timeframe where potentially harmful conditions are “probable” may prevent FWS from considering long-range climate change projections in its analysis of threats to the species.’

The proposed rules were published in the Federal Register on July 25, 2018. Comments are due September 24, 2018.