Endangered Species Law & Policy

Conservation groups hoped to make the American pika  the second mammal besides the Polar Bear, and the first in the lower 48 states, to be listed under the Endangered Species Act as threatened or endangered specifically due to climate change.  But the U.S. Fish and Wildlife Service (Service) determined that listing is not warranted at this time. See Notice (PDF).

The pika is extremely sensitive in increased ambient temperature (several hours above 78° F can be lethal).  But with the exception of certain lower elevation populations in the Great Basin, the Service determined that, within much of its range, the pika can adapt to the predicted 5.4° F increase by 2050 in average surface temperatures by retreating to cooler subsurface habitat during the warmest times of day, and by becoming more active at night and during the cooler early morning and evening hours.  Thus, the Service determined that the pika is neither endangered (i.e., in danger of extinction) nor threatened (i.e. likely to become endangered in the foreseeable future).

Shaye Wolf, a biologist with the Center for Biological Diversity, criticizes the finding as "a political decision that ignores the science and the law."

Listing of this tiny relative of the rabbit that primarily inhabits mountain ranges in the American West could have been a very big deal – and not just for industries and proposed actions located with the pika’s range.  If a species is listed as threatened or endangered specifically due to climate change, then any private industry or federal government action that may affect climate change – think any industry that emits greenhouse gasses (GHGs) and any private, state, or federal project that may increase GHG emissions – could be required to comply with the stringent regulatory requirements (and attendant litigation risks) of the Endangered Species Act because GHG emissions anywhere could impact threatened or endangered species everywhere. 

Thus, any refinery in the United States, e.g., could become subject to Endangered Species Act regulations protecting pika hundreds or thousands of miles away.  See Activists Propose Drastic Expansion of [Endangered] Species Act to Regulate Air Emissions (PDF).

So far, the prospect of using the Endangered Species Act to regulate GHG emissions has not materialized.  Within months of listing the polar bear as threatened due to climate change, the Department of the Interior under the Bush administration adopted a rule that specifically prohibits the federal government from using the polar bear's threatened status to regulate GHG emissions of activities that occur outside the polar bear’s range.  Much to the dismay of environmentalists, the Department of the Interior under the Obama Administration chose not to overturn the polar bear rule.  But the polar bear rule is being challenged in ongoing litigation, and may not survive judicial scrutiny.

Although the Service declined to list the American pika as endangered or threatened due to climate change, it is currently considering 82 species of stony coral for listing due to the impacts of climate change such as sea-level rise, increased temperature of surface waters, acidification, and greater frequency and intensity of storms.