The Ninth Circuit Court of Appeals has upheld a listing determination under the federal Endangered Species Act (ESA) based on both near-and long-term climate change predictive models. In Alaska Oil and Gas Association v. Prizker the court upheld the National Marine Fisheries Service’s (NMFS) listing of a distinct population segment of the bearded seal. The listing of the bearded seal as “threatened” under the ESA was based upon predictive models for both 2050 and 2100 that essential behaviors such as mating, birthing, and nursing required “non-contiguous sea ice floes over shallow waters,” and that such ice floes were likely to disappear completely during the critical months of April to June during which such behaviors occur. The Alaska Oil and Gas Association, the State of Alaska, and North Slope Borough (collectively: plaintiffs) challenged the listing on multiple grounds, including reliance on long-term climate change models.

In upholding the listing decision, the court cited to the District of Columbia Circuit’s upholding of the listing of the polar bear based on predictive models (Safari Club Int’l v. Salazar (In re Polar Bear ESA Listing & Section 4(d) Rule Litig.), 709 F.3d 1 (D.C. Cir. 2013)) as well as an earlier Ninth Circuit case upholding the designation of critical habitat for the polar bear (Alaska Oil & Gas Ass’n v Jewell, 815 F.3d 544 (9th Cir. 2016)).

The court held that additional modeling runs and scenarios provided sufficiently thorough analysis that deference by the court to the agency’s expertise was appropriate.

The Ninth Circuit’s decision is accessible online at: https://scholar.google.com/scholar_case?case=3398279579785340729&q=Alaska+Oil+and+Gas+Association+v.+Pritzker&hl=en&as_sdt=2006&as_vis=1

(David Smith)