Alaska court: Climate change can’t justify giant habitat for seals

From CFACT

By Bonner Cohen, Ph. D.

The Biden-Harris administration’s effort to designate over 324,000 square miles as “critical habitat” for two species of arctic seals has been struck down by a federal court in Alaska, which ruled that the designation – largely based on future impacts of climate change – was invalid under the Endangered Species Act (ESA).

In her Sept. 26 decision, U.S. District Court Judge Sharon Gleason delivered a stunning setback to the National Marine Fisheries Service (NMFS), quashing the agency’s 12-year quest to rope off an area larger than the State of Texas from oil and gas development along with crippling the area’s fishing industry and interfering with commercial shipping lanes. Once an area has been designated as critical habitat under the ESA, strict land- and water-use restrictions come into play that can hamstring commercial development. The critical habitat designation sought by the Biden administration included large swaths of the Bering Sea, Chukchi Sea, and Beaufort Sea.

First listed as threatened under the ESA by the Obama administration in 2012, the bearded seal and the Arctic ringed seal were granted critical habitat by the Biden administration in 2022. The area set aside for them, however, comprises almost the entire range of the seals’ habitat in the United States, including the coastal waters along the Alaskan North Slope and the adjacent Outer Continental Shelf. The State of Alaska filed suit against the NMFS and the Center for Biological Diversity, which had intervened in the case, in February 2023, arguing that the agency’s vast habitat designation was in violation of the ESA.

Biden administration officials attempted to use the ESA to shut down fossil-fuel development and other commercial activity, only to have Judge Gleason cite the NMFS’s own violations of the same statute in handing the State of Alaska a significant legal victory.  In justifying such an enormous federally protected habitat for the seals, the NMFS had pointed to the threat of future climate change; oil and gas exploration, development, and production; marine shipping and transportation; and commercial fishing.

But the court made quick work of the administration’s claims.

First, the court held that the NMFS failed to explain why the entirety of each designated area is essential to the conservation (i.e., survival and recovery) of the species or why a smaller area would be inadequate for the species’ conservation. The court noted further that the NMFS could not identify where essential sea ice features are located because the sea ice is dynamic and variable, and identifying exactly where ice features are found demands “greater scientific specificity that the available data could provide.”

Second, Judge Gleason held that the NMFS acted improperly by failing to consider the habitat of the two species of seals found outside U.S. territory.  While the ESA’s jurisdiction does not extend beyond U.S. borders, and no critical habitat can be designated there, the court concluded that the agency had an obligation to consider conservation efforts of foreign (say Canada or Russia) before determining whether such a large area in the U.S. must be set aside as critical habitat.

Third, the court held that the NMWS abused its discretion by failing to consider the exclusion of areas from critical habitat pursuant to ESA Section 4(b)(2).  State and local officials had sought such an exclusion along Alaska’s North Slope, hoping to protect fisheries and shipping lanes from the critical habitat designation. The court ruled that the NMFS should have explained why the entire 160-million- plus acres were needed for habitat and weighed the benefits of including and excluding certain areas.

“Simply because NMFS is unable to identify a less extensive, specific geographic location for breeding or molting does not explain why the 160-million-plus-acre areas it identified as critical habitat are ‘necessary’ or ‘indispensable,’ the Obama-appointed judge wrote.

Underscoring her view that the NFWS overreached in its handling of the seals, Judge Gleason added: “Although the court acknowledges the challenging nature of designating critical habitat for threatened species that inhabit Arctic waters, the court does not read the ESA to permit the service to designate nearly all of the seals’ occupied habitat within the United States as indispensable to the seals’ conservation.”

Finally, and in a real slap in the face of administration officials, the court remanded the NMFS’s habitat rule to the agency with vacatur, meaning, Courthouse News Service points out, “the seals will be left without critical habitat until the agency develops new rules consistent with the order.”

The court’s rebuke of the Biden administration’s attempt to use the ESA to curtail fossil-fuel development in Alaska could set the stage for developing this hydrocarbon-rich area under a new administration.

This article originally appeared at DC Journal