November 11, 2020

How “Foreseeable” Is Your Future?

Grant Ruhl

Take a moment to tally up your existence. Your hopes and fears, your career, your family, and everything in between. What, from this complex bundle we call “you,” is likely to happen in the foreseeable future? Do your immediate thoughts go to searching for a new home, or are you more concerned about who goes home on next week’s episode of The Great British Baking Show? More importantly . . . will you still exist in the future you deemed foreseeable?

Hopefully, mortality did not pass through your mind during this reflection. But this question is nonetheless one frequently asked by employees of the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS)—not necessarily in the context of personal well-being, thankfully, but as part of the species listing analysis required under the Endangered Species Act (ESA), 16 U.S.C. §§ 1531–1544.

The Endangered Species Act

Congress passed the ESA in 1973 to affirm our nation’s commitment to the conservation of threatened and endangered species. The ESA defines an “endangered” species as one “in danger of extinction throughout all or a significant portion of its range,” 16 U.S.C. § 1532(6), while a “threatened” species is one “likely to become an endangered species within the foreseeable future.” 16 U.S.C. § 1532(20) (emphasis added). Over the last near 50 years, the Department of the Interior and the Department of Commerce—acting through the FWS and the NMFS, respectively (collectively, Services)—have administered the ESA through duly promulgated joint regulations. On August 27, 2019, the Trump administration published final rules that, among many things, defined the foreseeable future as “extend[ing] only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely.” 84 Fed. Reg. 45020, 45052 (Aug. 27, 2019) (codified at 50 C.F.R. § 424.11(d)) (Rule).

At the risk of flippancy, it doesn’t take much more than a week of law school to know that any definition sporting both the adverbs “likely” and “reasonably” is about as mushy as they come. Predictably, the new rules prompted immediate challenges from environmental nongovernmental organizations (NGOs) on many grounds, one being that “[l]isting decisions must be made ‘solely on the basis of the best scientific and commercial data available,’ and injecting notions of ‘likelihood’ into those decisions . . . . increase[s] the level of certainty required to protect species, contravening Congress’s intent to ‘give the benefit of the doubt to the species.’” Complaint at 18, Ctr. for Biological Diversity v. Bernhardt, 442 F. Supp. 3d 97, 103 (D.D.C. 2020) (No. 3:19-cv-05206) (citing H.R. Rep. No. 96-697, at 12 (1979) (Conf. Rep.)). The court would later dismiss the action for lack of subject matter jurisdiction.

In response to these challenges, proponents of the ESA rule revisions have argued that the Trump administration’s Rule merely codified guidance set forth during the waning days of the Bush administration—a 2009 memorandum from the Department of the Interior defining foreseeable future as the extent to which the Services can “reasonably rely on predictions about the future in making determinations about the future conservation status of the species.” U.S. Dept. Int., Op. M–37021 at 1, The Meaning of “Foreseeable Future” in Section 3(20) of the Endangered Species Act (Jan. 16, 2009) (2009 Memorandum). The 2009 Memorandum goes on to note that “reliable predictions” need not be grounded in statistics, but may be nontechnical and common sense in nature. Regardless of what goes into a species’ foreseeable formula, it should be determined on a case-by-case basis. Id. at 7, 12. Similarly, when adopting the Rule, the Services reiterated that the foreseeable future is determined “on a case-by-case basis” and may take into account “the species’ life-history characteristics, threat-projection timeframes, and environmental variability,” but “need not identify . . . a specific period of time.” 84 Fed. Reg. 45020 (Aug. 27, 2019).

The Endangered Elephant in the Room

Take a moment to tally up the approach taken in the 2009 Memorandum and the 2019 Rule: a species’ foreseeable future is an undefined, case-specific period of time linked directly to that species’ undefined yet likely “future threats,” and any predictions about how the species will react to threats need only be reasonable, not necessarily scientifically sound.

This definition’s aggressive ambiguity can be largely attributed to the endangered elephant in the room: climate change. You would be hard-pressed to find a definition that more clearly signals a toss-up of governmental hands with regard to where, when, and to what extent impending ecosystem changes will occur as a result of climate change. But, while frustrating to those desperate for more concrete steps toward preventing ongoing species loss, one of the beauties of the foreseeable future definition is that it sidesteps the deeply polarized, heavily politicized subject of climate change without actually preventing the Services from taking it into account.

While some have warned that this approach to the definition of foreseeable future “enables regulators to disregard the effects of extreme heat, drought, rising sea levels and other consequences of climate change,” Lisa Friedman, U.S. Significantly Weakens Endangered Species Act, N.Y. Times (Aug. 12, 2009), the opposite is also true. In 2012, under the Obama administration, the NMFS designated several populations of bearded seal as threatened by risks posed by climate change (e.g., loss of sea ice) while explicitly following the 2009 Memorandum. Endangered and Threatened Species; Threatened Status for the Beringia and Okhotsk Distinct Population Segments of the Erignathus barbatus nauticus Subspecies of the Bearded Seal, 77 Fed. Reg. 76,741 (Dec. 28, 2012) (“This threat-specific approach creates a more robust analysis of the best scientific and commercial data available. It is also consistent with the Memorandum issued by the [Services] regarding the meaning of the term ‘foreseeable future.’”) (citing 2009 Memorandum)). The Ninth Circuit upheld the agency’s interpretation in 2016, ruling that “the ESA does not require NMFS to base its decision on ironclad evidence when it determines that a species is likely to become endangered in the foreseeable future; it simply requires the agency to consider the best and most reliable scientific and commercial data and to identify the limits of that data when making a listing determination.” Alaska Oil & Gas Ass'n v. Pritzker, 840 F.3d 671, 681 (9th. Cir. 2016). Remember, the squishier the definition, the greater the number of shapes into which it may be molded.

Conclusions

Generally, humans take refuge in the known. We do not like uncertainty, as it offends our most basic survival instincts. But there is potential comfort in ambiguity, too. During this article’s opening reflection, it was ambiguity—the shrouded, exciting mystery of tomorrow—that allowed you to imagine (and, hopefully, be inspired by) a more ideal version of your future self.

As much as we would like to proclaim otherwise, there are ultimately no “knowns” when it comes to climate change, as no future is known until it arrives. Thus, we must make do with the next best thing—the foreseeable. Here is to hoping that those tasked with the unenviable mission of implementing the ESA’s new rules foresee a better future for us all, including the many species that the ESA protects.

Grant Ruhl

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Grant Ruhl is an assistant counsel for the Tennessee Department of Environment and Conservation’s Office of General Counsel in Nashville, Tennessee.