Environmental Law and Optimism for an Endangered Future
Global warming is occurring in the Arctic and sea ice is melting and receding at record pace. This change provides substantial evidence that these effects will endure and cause changes for the foreseeable future in the supporting circumstance for sustenance and survival of the bearded seal and other Arctic creatures.
There are so many instances of conflict in the process of change, the residual entropy of the old ways confronted by the disconcerting challenges of the new. When what we value is at stake, we often revert to positions of black or white, either/or, that bring us to a confrontational paralysis that is disconcerting, disappointing, and dangerous. In many such instances we turn to our legal system — not our political system — as a means to resolve and enforce based on law, precedent, and justice.
Last year, my son Casey Neill, a musician, and I were invited to attend a staff retreat for the Center for Biological Diversity, an advocacy organization for endangered species, founded by Kieran Suckling, Peter Galvin, and Todd Schulke who first met as U.S. Forest Service employees during the conflict over the conservation of the spotted owl and exploitative forest practice. We met at a wilderness retreat center in Oregon, wood cabins, stone fireplace, camp furniture, and good people: mostly young, many lawyers, all dedicated to using the legal system to advocate for species on the verge of extinction and against initiatives and interests that would sacrifice them to financial return. After dinner, like an elder storyteller by the fire, I was asked to talk about water and how its conservation in all its cycles of circulation from mountain-top to abyssal plain was essential for the support of all life — plant, animal, and human — as a paradigm for future value, organization and behavior. Thereafter, thankfully, Casey provided the music.
I was truly impressed by the talent and dedication of these young people who could so easily pursue another career, far more remunerative, but who were so evidently committed to another kind of engagement on behalf of another kind of client. Their practice extended throughout the United States on behalf of many animals, wolves in particular, but today I want to celebrate their recent victory for the Bearded Seal in the Alaskan Arctic, a species with fairly robust population and no immediate sign of decline, not listed on the International Union for Conservation Science listing of “endangered.”
In October, however, the US 9th Circuit Court of Appeals, affirmed the listing of the bearded seal as endangered because of the evident future impact of climate change on its survival. The Center has been pursuing this goal in the courts for more than eight years and the decision may have positive application for future conservation cases under the Endangered Species Act based on the precedent for forward looking consequence of rapidly changing circumstance resulting from the impact on habitat by climate change.
Global warming is occurring in the Arctic and sea ice is melting and receding at a record pace. This change provides “substantial evidence” that these effect will endure and cause changes “for the foreseeable future” in the supporting circumstance for sustenance and survival of the bearded seal and other Arctic creatures. In the decision, Circuit Judge Richard Paez wrote, “The current consensus is that Arctic sea ice will continue to recede through 2100,” and that the judgment was based on best available research to reach the conclusion. In 2008, another court ruled that the US Fish and Wildlife Service list the polar bear and wolverine as endangered for similar reasons. Predictably, it was the Alaska Oil and Gas Association and the Petroleum Institute that filed the first challenges to these prior rulings, now overturned, but it is probable that even this decision will be appealed, up to the Supreme Court.
Engaging in these legal campaigns is expensive and time-consuming, and the other litigants have ample resources to continue the proceedings. But every decision, every precedent matters and each adds to the legal edifice that can grow into powerful rules for protection. The Center for Biological Diversity is one of several not-for-profit organizations engaged in such campaigns — the World Wildlife Fund, the Conservation Law Foundation, the Natural Resources Defense Council, the Nature Conservancy, and others — and many of these also promote natural resource protection by lobbying for legislative action, purchasing natural habitat areas for conservation purpose, and pursuing international treaties and agreements for additional protection. All good.
But I remember that evening in the Oregon forest when I met those front-line lawyers from the Center for Biological Diversity. The sense of optimism and possibility was palpable among them, the determination that the protection of natural life in all forms was a right and noble cause and that outcome could and would be reached by the rule of law. In that spirit they were warriors, and I was proud to be among them.
“Environmental Law and Optimism for an Endangered Future” was originally broadcast as an audio episode entitled “Optimism and the Law” on World Ocean Radio. It is part of the Earth Optimism Series, 24 posts that will profile conservation actions and innovations to reduce our impacts on the planet. The Earth Optimism Series is brought to you by the World Ocean Observatory in partnership with the Smithsonian Institution’s Ocean Portal, to raise awareness of the Earth Optimism Summit during Earth Day weekend, April 21st through 23rd, 2017 in Washington DC and around the world. Read more solutions and success stories here and share your own ideas at earthoptimism.si.edu.
Peter Neill is founder and director of the World Ocean Observatory, a web-based place of exchange for information and educational services about the health of the world ocean. Online at worldoceanobservatory.org. He is author of “The Once and Future Ocean: Notes Toward a New Hydraulic Society” available wherever books are sold.