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Projecting the Future: Ninth Circuit Upholds ESA Listing for Bearded Seals

March 2017

Citation: 47 ELR 10217

Issue: 3

Author: Elizabeth A. Lake and Rafe Petersen

In Alaska Oil & Gas Ass’n v. Pritzker the Ninth Circuit upheld a rule listing two species of seals as “threatened” under the ESA based on climate change projections and associated habitat loss from reduction of sea ice. The listing rule concluded that the loss of sea ice over shallow waters in the Arctic would leave the Pacific bearded seal subspecies endangered by 2095. The opinion allowed the extension of the “foreseeable future” time frame almost 50 years beyond any prior listing decision and reconfirmed that reliance on climate change models, even if uncertain, may constitute “best available science.” The Comment recounts the procedural and legal history of the decision, as well as the implacations of the decision in regards to future species listings.

Elizabeth A . Lake is a Partner in the West Coast Land Use and Environment Group at Holland & Knight LLP. Rafe Petersen is a Partner and member of the Government Section at Holland & Knight LLP.

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