Sea-Level Rise and the Endangered Species Act

Abstract

This essay analyzes legal responses to the biodiversity threats posed by sea level rise. It focuses on implementation of the Endangered Species Act by the United States Fish and Wildlife Service and the National Marine Fisheries Service. The essay begins by explaining the ways sea level rise threatens biodiversity, and then explains the legal tools the ESA offers as potential responses to those threats. It then examines how the FWS and NMFS have used, or not used, those tools. It finds that the agencies, while clearly cognizant of the threats posed by sea level rise, have avoided regulatory responses and instead have chosen to emphasize education and persuasion. That choice reflects the agencies’ awareness that none of the ESA’s regulatory tools is particularly well suited to address sea level rise, and that invoking any of those tools would generate political controversies and potential anti-regulatory backlashes. Nevertheless, the essay argues that such a non-regulatory approach holds slim odds of either mitigating the underlying causes of sea level rise or facilitating meaningful adaptation. It concludes with several suggestions for modest reforms, each of which would incrementally ameliorate the threats sea level rise poses for biodiversity. But it also argues that a truly meaningful response will require addressing the underlying causes of climate change.