Meredith Hou
88 Geo. Wash. L. Rev. 753
The Endangered Species Act (“ESA”) has been a powerful tool for conserving both national and global biodiversity. As human society continues to evolve, however, so too does its impact on endangered species. Most troublesome is mankind’s contribution to climate change since the Industrial Revolution. As extreme weather events, rising sea levels, and increased spread of disease indiscriminately harm living creatures, the fight against species extinction has become an uphill battle.
Thankfully, there is still hope. Past legal scholarship has proposed using the ESA to protect species from the effects of climate change, for example, by preserving habitats that they will likely need in the future. Using the ESA in this fashion, however, only addresses climate change retrospectively.
This Note proposes using section 7(a)(1) of the ESA to address climate change prospectively. Section 7(a)(1) commands federal agencies to pursue the conservation of endangered species—a mandate that can be used to mitigate climate change. Because section 7(a)(1) has only been interpreted by courts and not by the agencies that administer the ESA, this Note fills in the logical gaps and extrapolates a rule that can properly carry out the policy asserted in Tennessee Valley Authority v. Hill—that endangered and threatened species be afforded the “highest priority.” Specifically, this Note proposes that federal agencies must consult with the Fish & Wildlife Service (“FWS”) or National Marine Fisheries Service (“NMFS”) under section 7(a)(1) if there is a conservation-friendly alternative to either (1) a proposed agency action or (2) the administration of a statute within the agency’s authority. The agency must implement a conservation-friendly alternative if one exists. If more than one exists, the agency retains discretion to choose among the alternatives.
Finally, this Note applies the affirmative conservation framework to the Environmental Protection Agency (“EPA”), concluding that section 7(a)(1) requires the EPA to regulate greenhouse gas emissions under the Clean Air Act’s (“CAA”) national air quality standards to mitigate climate change and thus protect endangered species. This Note demonstrates that regulating methane emissions by focusing on Concentrated Animal Feeding Operations would allow the EPA to satisfy its affirmative conservation duty while avoiding costly economic and political alternatives.
