Occasionally, the All Things Legal team discusses interesting court cases that will almost certainly end up in front of the Supreme Court due to their controversial nature. Last week the team focused on one such case—whose fate will likely be impacted by the election of Donald Trump as president this week—which involves the application of a four decade old law.
We’ll let Craig Ashton kick things off.
The question: Should bearded seals be protected by the Endangered Species Act because they might become endangered?
Craig: “A very interesting case came out of the Ninth Circuit [Court] in San Francisco, which basically extended the 1973 Endangered Species Act—which was signed by Richard Nixon—to say that you can look at climate change and determine what the habitat [of a species of concern] is going to be in the future, and even though the bearded seal [the species at the center of this litigation] is not at this point threatened, it’s being listed as threatened as a result of what they anticipate their Arctic habitat to look like in the years to come.
“The Endangered Species Act… provides for the conservation of species that are endangered or threatened throughout all or a significant portion of their range, and conservation of the ecosystems on which they depend.”
Craig: “At issue [in this case] was whether fisheries can protect species as threatened under the Endangered Species Act when it determines that currently non-endangered species will lose habitat due to climate change in the coming decades.
“Basically, the [organization that was] opposing this was Alaska Oil & Gas Association, because they wanted to drill. They [provide] environmental counsel for the oil and gas association, which is kind of an oxymoron. And they’re just saying, ‘Hey, look, climate change is not real, it’s not scientifically based, it’s conjecture, it’s not based upon anything that we can really rely upon.’”
The oil companies took the approach of attacking the legitimacy of global warming. But how valid is that approach?
“So, I just point you to the Higgs boson, to quarks, to gluons, to Nikola Tesla who came up with alternating current… you don’t have to understand electricity to understand that those things are real, right? So the point is that scientifically, there’s no more debate on this. The only people that are debating it are the ones that have a vested interest in pulling out more carbon from the planet and then basically changing the climate.
“So, what the court said is that you can’t anticipate what’s going to happen 30 years from now, and therefore list these species as threatened, and then limit the activity, at least in their range, to help protect them going forward, based upon what you anticipate their populations to be as a result of climate change.”
Ed Schade had some doubts about the ruling, and expressed concerns about the amount of power that it placed in the hands of government officials: “I thought that the [argument against the extension of the Endangered Species Act] was… I kinda liked it. I’m not promoting one side or the other, but he said, ‘This is all based on hypotheses.’ These are not actual [scientific] laws that are in place, like ‘You hit 32 degrees at sea level, water is going to freeze.’ [In the scientific hierarchy], you have laws, and then you have theory, and then you have a hypothesis.
“But getting all that aside, the granting of this decision now puts into the hands of bureaucrats—not elected officials—the ability to start handing down regulatory rulings and laws that are going to bind individuals, companies, states, counties, whatever. So it’s something that should be done legislatively, so that you actually can have hearings on it as opposed to some bureaucrat writing regulations saying, ‘You can’t do this anymore.’”
The fate of this case will likely rest in the hands of the justice eventually appointed by President-Elect Donald Trump.
Craig: “Yeah well, this is going to go to the Supreme Court as well, for sure, because the opposition is super well-funded [thanks] to the oil and gas industry. So that’s going to be another case that’s going to go in front of the Supreme Court, that, depending on who gets elected president, if it’s Trump, then this is definitely going to get overturned.”
Given the recent election results, it will be interesting to see how a rebalanced Supreme Court will approach this and many other controversial cases in the years ahead.