October 31, 2016

A three-judge panel of the U.S. Circuit Court of Appeals for the Ninth Circuit ruled Monday, October 24, that species listings under the Endangered Species Act may be based on climate models showing future habitat loss. The San Francisco based court vacated a 2014 U.S. District Court of Alaska summary judgment and instead supported the National Marine Fisheries Service’s (NMFS) listing of Beringia and Okhotsk bearded seals.

The case challenged NMFS’s reliance on projections of habitat loss due to climate change in listing the Beringia bearded seal as threatened. The Alaska court’s ruling, by Judge Ralph Beistline, had found that NMFS had made an “arbitrary and capricious decision” when it listed the seals, calling it “hollow speculation.” The 9th Circuit Court’s unanimous ruling in the case, Alaska Oil and Gas Ass’n v. Pritzker, 9th Cir., No. 14-35806, directly contradicts the lower court ruling.

The NMFS listing decision was based in part on projections that shallow ice sheets relied on by the two seal species for birthing and mating would likely disappear by 2095, forcing the seals to move to shore locations, which would remove them from food sources and expose them to their primary predators, polar bears and walruses. Plaintiffs in the Alaska case contended that climate change predictions beyond 50 years were unreliable. The lower court ruling in favor of the plaintiffs was appealed by NMFS and the Center for Biological Diversity.

Judge Richard Paez, in writing Monday’s opinion for the 9th Circuit, stated that “The ESA does not require NMFS to base its decision on ironclad evidence when it determines that a species is likely to become endangered in the foreseeable future; it simply requires the agency to consider the best and most reliable scientific and commercial data and to identify the limits of that data when making a listing determination.”

The 197 countries party to the Montreal Protocol on Substances that Deplete the Ozone Layer agreed to an amendment to phase down the potent greenhouse gases known as hydrofluorocarbons (HFCs), which are among the fastest growing and most damaging of greenhouse gases.

The amendment, agreed to on October 15 in Kigali, Rwanda, will see a reduction in HFCs use by more than 80% by 2047 and could avoid up to 0.5° C in warming by 2100. It represents the first major step toward implementing the Paris Agreement.

The Kigali Amendment, unlike the voluntary Paris Agreement, mandates specific targets and timelines to replace HFCs, sanctions for violations and funding from richer countries to help lesser-developed countries in their transition to costlier alternatives.

Hydrofluorocarbons are greenhouse gases commonly used in a wide variety of applications, including refrigeration and air conditioning (~79%), building insulation and other foam products (~11%), aerosols (~5%), fire extinguishing systems (~4%), and solvents (~1%). HFCs have high global warming potential. The most commonly used HFC is HFC-134a, which is estimated to be 1,430 times more damaging to the climate system than carbon dioxide.

Although a greenhouse gas, HFCs are controlled under the Montreal Protocol on ozone depleting substances rather than the recently ratified Paris Agreement of December 2015 on global greenhouse gases. This was driven by consensus recognition of the serious detrimental impact of HFCs on climate change.

The landmark Kigali Amendment to the Montreal Protocol is seen as the final accomplishment of the Obama Administration’s climate goals for 2016, preceded by the North American Climate, Clean Energy and Environment Partnership and the United Nations’ Paris Agreement.

President Obama called the deal “an ambitious and far-reaching solution to this looming crisis,” in a White House Statement.

A White House Fact Sheet on the Kigali Amendment notes that the agreement is widely supported by industry, including major producers such as Chemours, Dow Chemical and Honeywell, and users such as Carrier, Coca-Cola, Johnson Controls, Kroger, PepsiCo, Target and others.

The Kigali Amendment, will enter into force in January 2019, provided that it is ratified by at least 20 parties. If that condition is not met by 2019, the Amendment will become effective 90 days after 20 parties ratify it. The full text of the amendment and other decisions taken at the Kigali meeting may be found on the Ozone Secretariat Conference Portal.

Seven species of yellow-faced bees (genus Hylaeus), the only genus of bee native to Hawai’i, were listed for protection under the Endangered Species Act by the U.S. Fish and Wildlife Service (USFWS) under a final rule released on September 30 that is effective October 31, 2016. The listing, the first-ever for a bee, specifically notes the impact of habitat destruction and modification from human activity, non-native plants and animals, and increased wildfire intensity and duration. Ironically, the final rule does not include designation of any critical habitat areas.

The listing of yellow-faced bees comes just days after USFWS announced a proposed rule to list as endangered the rusty patched bumble bee (Bombus affinis), a species that occurs in the Eastern and Midwestern United States and also Ontario, Canada. The proposed rule points to habitat loss and degradation, farming, disease, pesticide and climate change as factors contributing the bumble bee’s decline.

The public comment period on the proposed listing of the rusty patched bumble is open. Further information is provided below and may be found in the online docket folder, FWS-R3-ES-2015-0112.

Six years after the Depp Water Horizon oil spill in the Gulf of Mexico, a federal judge approved a $20.8 billion settlement on October 20 between the federal government and BP. Clean Water Act penalties of $5.5 are included in the agreed settlement with most of the remaining $16 billion going to five states in Gulf Coast for ecosystem restoration.

On October 21, the Obama administration released a memorandum (M-17-01) providing guidance to the five federal agencies involved in reviewing and permitting of Gulf Coast environmental restoration projects.

Agriculture Secretary Tom Vilsack and chairman of the Gulf Coast Ecosystem Restoration Council, in a blog post on the memo, commented, “. . . it is vital that the federal agencies be as efficient as possible in designing, analyzing and ultimately putting meaningful restoration projects on the ground in each of the states.” He continued, “At the same time, it is critical that we improve the efficiency and timeliness of permitting and other regulatory reviews required to implement these projects.”

The RESTORE Council’s grants office web page includes information on grant opportunities, training, and related interagency agreements.

A bid to decommission four dams along the Klamath River, owned by PacifiCorp, receives a strong boost with Interior Secretary Sally Jewell’s letter to Federal Energy Regulatory Commission (FERC) Secretary Kimberly Bose. The letter, dated October 17, strongly supports the decommissioning petition filed by the Klamath River Renewal Corporation with FERC on September 23.

“In short, dam removal can re-write a painful chapter in our history, and it can be done in a manner that protects the many interests in the Basin,” Jewell wrote. She continued, “The recommendation and determination I am making today are not entered into lightly. Rather, I do so in reliance on the most comprehensive and robust analysis of dam removal ever undertaken.”

The four PacifiCorp dams on the Klamath River produce hydroelectric power. Federal environmental agencies recommended that the dams need retrofitting to provide fish passages. The Oregon and California public utility commissions found that decommissioning the dams was a prudent alternative.

Known as the Lower Klamath Project, the initiative seeks to decommission and remove four of the five dams along the Klamath River, the J.C. Boyle, Copco No. 1, Copco No. 2, and Iron Gate. The Klamath Corporation was formed to oversee the dam removal process. Dam removal should begin in 2020 if FERC approves the pending applications.

ESA hosted a webinar with a FAA expert guest presenter who reviewed the new rules for unmanned operating systems, commonly referred to as drones. The recorded webinar is now available for viewing on ESA’s Vimeo channel.

The United States Geological Survey (USGS) Coalition sent letters to House and Senate leadership last week urging passage of a FY 2017 Interior Appropriations bill, rather than a year-long continuing resolution. The letters argue that such stop-gap funding would harm the agency’s work and the stakeholders depending on its products and services, as well as inhibit long-term planning.

USGC Coalition is an alliance of over 70 organizations, including the Ecological Society of America, committed to the continued vitality of the unique combination of biological, geographical, geological, and hydrological programs of the USGS.

U.S. Forest Service, U.S. Department of Agriculture
Forest Resource Coordinating Committee
The United States Department of Agriculture is seeking nominations for the Forest Resource Coordinating Committee. Written nominations must be received by November 14, 2016

Meetings
U.S. Department of Energy, Office of Science
Biological and Environmental Research Advisory Committee Meeting
The meeting will occur on Thursday, October 27, 9 am to 6 pm, and Friday, October 28, 9 am to 12:30 pm.

National Science Foundation
National Science Board Meeting
The meeting will take place on November 8 and 9, 2016, beginning at 8 am.

U.S. Fish and Wildlife Services
U.S. Fish and Wildlife Service Aquatic Nuisance Species Task Force Meeting
The Task Force will meet from 8 a.m. to 5 p.m. on Wednesday, November 9, 2016, and 8 a.m. to 5 p.m. on Thursday, November 10, 2016.

Request for Comment
U.S. Fish and Wildlife Service
Endangered and Threatened Wildlife and Plants; Endangered Species Status for Rusty Patched Bumble Bee
The U.S. Fish and Wildlife Service has found that listing the rusty patched bumble bee (Bombus affinis), a species that occurs in the eastern and Midwestern United States and Ontario, Canada, is warranted. Public comments on the species status assessment used for the proposed listing are invited. The proposed rule, supporting documents and comments received to date may be found in docket folder FWS-R3-ES-2015-0112. Comments will be accepted which are received or postmarked by November 21, 2016.

Funding Opportunities
Northwest and Southeast Climate Science Centers
U.S. Geological Service
CSC Recompetition
Applications must be submitted through the grants.gov portal by January 12, 2017 at 3:00 PM EST.

Gulf of Mexico Research Initiative
Request for Proposals for 2018-2019
The Gulf of Mexico Research Initiative has announced its Request for Proposals for 2018-2019 to fund research activities for the period from January 1, 2018 to December 31, 2019.