November 6, 2008

thoughts on the Endangered Species Act and global warming

By thoughts on the Endangered Species Act and global warming

Here's an interesting article from the Ag Journal on how global warming fits into Endangered Species Act Section 7 consultations. One of the main conclusions of the article is that "[d]espite the FWS guidance’s attempt to limit the reach of Section 7 consultations for global warming, the final decision regarding whether a federal agency has to complete a Section 7 consultation will not be decided by the federal government, but will be decided by the courts."

This will likely be the sad reality in the coming years, and the unfortunate nature of this reality has little to do with the question of whether man is the central cause of global warming.

The problem with courts making the decision to require global warming considerations in Endangered Species Act consultations is that Congress is noticeably absent. Given the restrictions and costs that will be passed on to the people by requiring federal and private actors to factor in how their projects will contribute to global warming and assess whether those contributions will in turn harm endangered species, one would expect that the people themselves would decide to absorb these costs.

Instead, under the Ag Journal's reasonable forecast, unelected judges will decide whether to use a law that was neither envisioned nor is equipped to address global warming to, in fact, address global warming. This is certain to lead to messy and varying results, and in the end federal agencies and private landowners will have no better idea on what they must do under the Endangered Species Act to mitigate any tenuous global warming effects of their actions.

If global warming is indeed an issue that this country must address, it makes no sense for courts to undertake this task–one that is fraught with numerous complexities–with a law that says nothing whatsoever on the subject.

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