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.
Center for Biological Diversity asks court to require EPA to designate Washington State's coastal marine waters as impaired
On May 14, 2009, the Center for Biological Diversity (CBD) sued the EPA for allegedly violating the Clean Water Act when it approved the impaired waters list submitted by Washington State under Clean Water Act section 303(d). According to the CBD complaint, any body of water that does not attain Washington’s water quality standards must be included on the impaired waters list. As evidence of coastal water impairment, CBD refers to a scientific report (“Dynamic patterns and ecological impacts of declining ocean pH in a high-resolution multi-year dataset,” by J. Timothy Wootton, Catherine A. Pfister, and James D. Forester, Proceedings of the National Academy of Sciences (PNAS), August 2008) that modeled an aggregate pH decline of approximately 0.36 units in Washington’s coastal waters based on data collected between 2000 and 2007. According to the CBD, a pH decline greater than 0.2 units violates Washington State’s water quality standards, and therefore Washington’s coastal waters must be included on the state’s impaired waters list. The CBD suit asks the court to declare that the EPA violated the Clean Water Act by approving Washington State’s impaired waters list and compel the EPA to add the ocean waters allegedly impaired by ocean acidification caused by carbon dioxide to Washington’s list of impaired water bodies.
The CBD suit faces significant challenges. For example, if one accepts as true CBD’s allegation that pH levels in Washington’s coastal marine surface waters have declined by more than 0.2 units over the past eight years, that fact alone does not necessarily establish that Washington’s coastal waters are impaired under the state’s current water quality standards. First, Washington State’s Water Quality Standards do not define any period of time over which pH must decline to trigger the standard, and it is not at all clear that an eight-year period was contemplated when these regulations were promulgated. Second, and more importantly, CBD has cited the pH quality standard that must be met for marine waters to be considered of “extraordinary” quality. A pH decline of no more than 0.5 units – well within the aggregate decline of 0.36 units modeled in the PNAS report – still meets the Washington State Water Quality Standard applicable to “excellent” quality water. It is hard to imagine that any court will find that the EPA violated the Clean Water Act when it failed to include on the impaired waters list a body of water considered to be of “excellent” quality under the applicable state standard.
The issue of ocean acidification is gaining visibility. For example, leading marine scientists recently called for international government support for scientific and economic research to better understand the problem and to implementation of policies to meaningfully reduce CO2 emissions. See Monaco Declaration on Ocean Acidification. Moreover, almost one year ago the House of Representatives passed H.R. 4174 (The Federal Ocean Acidification Research and Monitoring Act of 2007), which subsequently died in the Senate. The House is presently considering H.R. 14 (The Federal Ocean Acidification Research and Monitoring Act of 2009). The CBD’s litigation efforts will likely bring even more public attention to this issue.
