Alaska v. Ross

The U.S. Supreme Court declined to review a Ninth Circuit decision upholding the listing of the Beringia distinct population segment of the Pacific bearded seal subspecies as “threatened” under the Endangered Species Act. The Ninth Circuit had reversed a district court decision vacating the listing; the Ninth Circuit found that the National Marine Fisheries Service reasonably relied on loss of sea ice caused by global climate change over the next 50 to 100 years as the basis for the listing. The parties seeking certiorari asked the Supreme Court to consider whether a species could be listed as threatened when the government determined that the species “is not presently endangered” but “will lose its habitat due to climate change by the end of the century.”

Petitioners led by the State of Alaska filed a petition for a writ of certiorari seeking U.S. Supreme Court review of the Ninth Circuit’s decision upholding the listing of the bearded seal as a threatened species under the Endangered Species Act (ESA). The petitioners identified the question presented as whether a species could be listed as threatened when the government determined that the species “is not presently endangered” but “will lose its habitat due to climate change by the end of the century.” The State of Alaska petitioners argued that the case isolated a single legal issue of “critical importance regarding the reach of the ESA” and that the case provided “an ideal vehicle” for reviewing the issue because the National Marine Fisheries Service (NMFS) “based its listing decision entirely on the speculative, long-term effects of climate change on a healthy species,” the listing decision would take “a substantial, immediate toll on the State and its local population,” and the listing lacked positive conservation effects because NMFS “disclaimed any power to address the threat it purported to identify. The Alaska petitioners argued that NMFS had disregarded the statutory text and structure,” and that the agencies charged with implementing the ESA should not be allowed to “manhandle” the statute “to fit the square peg of climate change into the round hole of ESA regulation.” The Alaska petitioners said immediate review was necessary because neither the Ninth Circuit nor the D.C. Circuit was “likely to impose any effective limit on the listing of cold-weather species.”