CBD lawsuit seeking ESA protection of sea turtles due to climate change the latest attempt at regulation through litigation
Co-authored with Amy Garber.
The failure of the US to define its climate change policy through legislation and rulemaking has once again resulted in an attempt by environmental groups to force global warming policy through litigation. Plaintiffs Center for Biological Diversity (CBD), Turtle Island Restoration Network and Oceana Inc., have filed a complaint alleging violations of the Endangered Species Act (ESA) and Administrative Procedure Act based upon allegations that the habitat of the leatherback and loggerhead sea turtles is being destroyed by climate change. The case, Center for Biological Diversity et al v. Locke et al, which is docketed in the Northern District of California, seeks declaratory and injunctive relief requiring the government to protect the turtles and their habitat from the effects of climate change.
In particular, plaintiffs allege that the government defendants failed to make a timely determination on petitions that the groups had filed in 2007 to designate certain areas as “critical habitats” and some sea turtle species as “endangered.” In September 2007, plaintiffs petitioned the Fisheries Service to designate the ocean waters of the California and Oregon coasts a “critical habitat” for the leatherback sea turtle. Further, the petition requested the Fisheries Service and Fish and Wildlife service to reclassify certain loggerhead populations as “endangered.” The government determined in December 2007, that the petition was warranted but failed to make a final determination within the ESA’s mandatory 12-month period.
The complaint makes sparse and vague allegations as to injurious effects of climate change on the sea turtles. Plaintiffs allege that global warming will cause sea levels to rise, thus destroying loggerhead nesting beaches. Further, they claim that ocean warming is likely to directly affect reproduction and other necessary survival activities of the loggerhead turtle. The Complaint also asserts that ocean acidification, which they allege is caused by increased greenhouse gas levels, will cause a decrease of the loggerhead’s food supply. As to the leatherback sea turtle, the Complaint also alleges in general terms that global warming is endangering the species.
This case is another example among many recent attempts to regulate climate change by litigation. Asserting injury due to global warming seems to be turning into an almost boilerplate assertion for complaints brought by environmental groups under federal environmental laws.
