Applying the Endangered Species Act to Global Climate Change

Richard O. Faulk, Gardere Wynne Sewell LLP
John S. Gray, Gardere Wynne Sewell LLP

Abstract

The “pit bull” of environmental law has taken its first bite into global climate change --- and as so many parties have learned since the ESA’s enactment, the grip is persistent and not easily dislodged. One hopes, however, that critical evaluation of the “broader agenda” underlying the polar bear’s listing will not be precluded by narrowly focusing on the preservation of a single species. Global climate change itself, as well as the measures necessary to avert its effects, are issues that must be resolved in careful diplomacy – with all nations at the table accepting a rational share of the burden. Allowing individual judges in United States courtrooms to dictate piecemeal policies to govern international negotiations is a dangerous, fundamentally undemocratic, and ultimately, ineffective approach to resolving such a fundamentally complex international issue – but articulating and successfully advocating against the ESA’s “unforgiving” mandates will require strenuous and creative efforts far beyond those encountered in previous controversies.