Amicus Curiae Brief — Massachusetts v. EPA

Supre:re Cum: On

wt, Ue

FILED

No. 05-1120

AUG 3.4 3998

ZU40

Lorrice oF OF THE CLERK

In The

Supreme Court of the United States

S

COMMONWEALTH OF MASSACHUSETTS, et al.,

Petitioners,

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Respondents.

+

On A Writ Of Certiorari To The

United States Court Of Appeals

For The District Of Columbia Circuit

*

BRIEF OF AMICI CURIAE

WILDLIFE CONSERVATION INTERESTS

IN SUPPORT OF PETITIONERS

¢

JOHN F. KOSTYACK

NATIONAL WILDLIFE FEDERATION

1400 16th Street, N.W., Suite 501

Washington, D.C. 20036

(202) 797-6800

Counsel of Record for Amici Curiae

MarY RANDOLPH SARGENT

NATIONAL WILDLIFE FEDERATION

1400 16th Street, N.W., Suite 501

Washington, D.C. 20036

(202) 797-6800

Counsel for Amici Curiae

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES. ..........sssssssssssssssesesees iii

INTEREST OF AMICI CURIAR ..........cccessesseessessees 1

SUMMARY OF ARGUMENT .........:ssssscssseseessseeeesssee 1

IE EST SITTER 4

I. EPA FAILED TO CONSIDER THE HARM-

FUL EFFECTS OF CLIMATE CHANGE ON

We BRINE UD scvcceseccssenesesnnscssonerosscncsungetsononescseses 4

A. The Clean Air Act Explicitly Requires

that EPA Consider Climate and Wildlife

in Deciding Whether to Regulate Air Pol-

IG aicresccsccinscnsnicnintneninatensanitaasnninevenities 4

- B. EPA’s Failure to Address Climate Change

and its Impacts on Wildlife Cannot Be

Justified on the Ground of Scientific Un-

BURIED nccccncccccsesccosencesscesscecenssseunsoneseese' 5

II. CLIMATE CHANGE IS DISRUPTING THE

ECOSYSTEMS THAT SUSTAIN WILDLIFE

I eh cccsceictaiacsccnsegadinnecntmniinnineinneiin 6

A. Wildlife Faces Increased Risks of Extinction

Due to Rising Surface Temperatures............ 7

B. Rising Sea Levels and Intensified Hurri-

canes and Typhoons Jeopardize Coastal

Wildlife and Ecosystems ...................00-+++ 13

C. Disappearing Permafrost, Sea Ice, and

a 16

D. Invasive Species, Pathogens and Pests

Are an Increasing Threat to Wildlife Due

I cniisinnsinntitncnninnnsinnineniicnns 20

il

TABLE OF CONTENTS -— Continued

Page

E. Changes in Precipitation and Humidity

Threaten Wildlife and Ecosystems........... 22

F. Increased Water Temperatures and Acid-

ification Jeopardize Ocean Wildlife and

ID ischicithschiniashalbcascibtsinkdiisiihddiicheneiteiiie 23

III. CONSERVING ABUNDANT WILDLIFE

AND HEALTHY ECOSYSTEMS IS ESSEN-

TIAL TO THE NATION’S ECONOMY AND

EE We Si idiicieecaetsinchiaiiteteniedintiiasendine 25

A. Hunting, Fishing and Other Wildlife-

Oriented Activities Help Fuel a Large

Te 25

B. Healthy Ecosystems Provide Services

that Sustain the Economy......................+. 27

C. Abundant Wildlife and Healthy Ecosys-

tems Are an Essential Part of America’s

I icnctencitdtandacicisdcltad ihiaiaeaadncinid tusialaliidinags 30

I iiiciseiiciicticieibhiisicaiaicnsiuielicadasisnlaciiaithiicinlioensaie 30

iil

TABLE OF AUTHORITIES

Page

STATUTES

AZ UBC. § TEBI .....0.0.ccorrecrserereveverevesscssensesorevesopssevsnseossosoes 4

| | EER enEe romeo wnat Cone eee 4

OTHER AUTHORITIES

The American Heritage Dictionary of the English

Bees GEES OE, Tee cccnscscscevtcoscensssnsnsncssonsesimnenesciets 1

James Boyd & Spencer Banzhaf, Resources for the

Future, What Are Ecosystem Services? The Need for

Standardized Environmental Accounting Units

David D. Breshears et al., Regional Vegetation Die-

off in Response to Global-Change-Type Drought,

102 Proceedings of the Nat'l Academy of Sciences

Sn: SIENA SID sscinicsshtetntetenenianbiediibedsddsainelnimbaineeiiniiaets 22

Edward J. Brook, Atmospheric Science: Tiny Bub-

bles Tell All, 310 Sci. 1285 (20085)........... cece ceeesseeeeeeeeeeeees 6

R.W. Buddemeier et al., Pew Ctr. on Global Climate

Change, Coral Reefs & Global Climate Change:

Potential Contributions of Climate Change to

Stresses on Coral Reef Ecosystems (2004).................005 24

Virginia Burkett & Jon Kusler, Climate Change:

Potential Impacts and Interactions in Wetlands of

the United States, 36 J. of the Am. Water Res.

pT ve eT ae REDE ORR 16

Center for Health and the Global Env’t, Harvard

Med. Sch., Climate Change Futures: Health, Eco-

logical and Economic Dimensions (20085) ............... 21, 27

lV

TABLE OF AUTHORITIES — Continued

Page

Gretchen C. Daily et al., Ecosystem Services:

Benefits Supplied to Human Societies by Natural

Ecosystems, 2 Issues in Ecology (1997)................0000s000 28

Gretchen C. Daily, Introduction: What Are Ecosys-

tem Services?, in Nature’s Services: Societal De-

pendence on Natural Ecosystems (Gretchen C.

ic; ire Acs hinsvacvniininividatoiditiedettaibiitsnidiaecieaas 28, 29

Simon D. Donner et al., Global Assessment of Coral

Bleaching and Required Rates of Adaptation

Under Climate Change, 11 Global Change Biol-

ST re Seep ivintnivsvncsecsdactidniictcincdenbindeiiatiabiubideints 24

Julian A. Dowdeswell, The Greenland Ice Sheet and

Global Sea-Level Rise, 311 Sci. 963 (2006) ..........0000..... 14

Joseph Ebersole et al., Thermal Heterogeneity,

Stream Channel Morphology and Salmonid

Abundance in Northeast Oregon Streams, 60

Can. J. of Fisheries & Aquatic Sci. 1266 (2003)............ 19

P.R. Epstein, Center for Health & the Global Envt.,

Harvard Med. Sch., Marine Ecosystems: Emerg-

ing Diseases as Indicators of Change (1998)................. 21

Tim Flannery, The Weather Makers (2005)......... vesee passim

Habiba Gitay et al., Intergovernmental Panel on

Climate Change, Climate Change and Biodiver-

sity, IPCC Technical Paper V (2002) ...............::0008 passim

Susan Joy Hassol et al., Arctic Climate Impact

Assessment, Impacts of a Warming Arctic

IE vinectsnnecninciniiersecninnceninietinubieldeiiamahiioimias 16, 17, 18

C.D. Harvell et al., Emerging Marine Diseases -

Climate Links and Anthropogenic Factors, 285

a, Fe COD crcstnsesevsrssbcsinithisntervetiitiniaiimbibinanima 21

TABLE OF AUTHORITIES — Continued

Page

Doug Inkley et al., The Wildlife Society, Global

Climate Change and Wildlife in North America

Si ciiiinitidniarinhsapipndanetsenatimasemnnnsdniasedbonssecieteneusatees 7, 14, 20

Intergovernmental Panel on Climate Change,

Climate Change 2001: Synthesis Report (2001).............. 6

Intergovernmental Panel on Climate Change,

Summary for Policymakers: A Report of Working

Group I of the TPCC (2001)........cccccccecceseseeeeeeeeeenes 6, 7, 13

W. Carter Johnson et al., Vulnerability of Northern

Prairie Wetlands to Climate Change, 55 BioSci.

ES ae se a tea 9

Joint Science Academies’ Statement: Global Re-

sponse to Climate Change (June 7, 2005) ............00:ee0e0 6

Susan Herrod Julius, U.S. EPA Global Change

Research Program, What Are the Potential Im-

pacts of Climate Change on Fresh Water Recrea-

tional Fishing Opportunities in the U.S.?,

Presentation to the Water Ecology and Climate

Change Workshop (June 15, 2001)...............cccceeceesseeeees 26

James Kardouni & Nicoleta Cristea, Quality

Assurance Project Plan. Snoqualmie River Tem-

perature Total Maximum Daily Load, Wash.

Dep't of Ecology, Pub. No. 06-03-106 (July 2006) ......... 19

Kirkman O’Neal, Defenders of Wildlife & Natural

Res. Def. Council, Effects of Global Warming on

Trout and Salmon in U.S. Streams (2002).................... 19

Joan A. Kleypas et al., NSF, NOAA & USGS,

Impacts of Ocean Acidification on Coral Reefs

and Other Marine Calcifiers: A Guide for Future

Research, Report of a Workshop on April 18-20,

2005, Sponsored by NSF, NOAA & USGS (2006)......... 25

vi

TABLE OF AUTHORITIES -— Continued

Robert J. Livingston, Projected Changes in Estua-

rine Conditions Based on Models of Long-Term

Atmospheric Alteration, in U.S. EPA, The Poten-

tial Effects of Global Climate Change on the

United States: Report to Congress (Joel B. Smith

& Dennis Tirpak eds., 1989)............ccccssceseseeeseeseees

Thomas E. Lovejoy & Lee Hannah, Climate Change

and Biodiversity (2005) .................ccc000+++ 2, 10, 11,

Jay R. Malcolm & Louis F. Pitelka, Pew Ctr. on

Global Climate Change, Ecosystems & Global

Climate Change: A Review of the Potential Im-

pacts on U.S. Terrestrial Ecosystems and Biodi-

TD clnncinscttnnesnlinipatiiatniinictaetamainantinndtnaniitien

John A. McGowan et al., The Biological Response to

the 1977 Regime Shift in the California Current,

50 Deep-Sea Research II 2567-82 (2003)..................

Donald McKenzie et al., Climactic Change, Wildfire,

and Conservation, 18 Conservation Biology 890

a cnssepsenascantencnscenvsnasansecnensnennnenguetianinnespemenentinene

Joseph R. Mendelson et al., Confronting Amphibian

Declines ana Extinctions, 313 Sci. 48 (2006) ...........

G. Tyler Miller, Jr., Environmental Science: Sus-

taining the Earth (1991) .....ccc.cccsssscssseessssecsssuesesecee

Impacts of Climate Change: Hearing Before the

Senate Comm. on Commerce, Sci. & Transp.,

108th Cong. (2004) (testimony of Dr. Phillip W.

ERTS RA A BORER AE EER oe PI oe er

NASA, Arctic Sea Ice Continues to Decline, Arctic

Temperatures Continue to Rise in 2005 (Sept. 28,

2005, http://www.nasa.gov/centers/goddard/news/

topstory/2005/arcticice_decline. html) .....................

Page

vii

TABLE OF AUTHORITIES — Continued

NASA, Visible Earth: A Catalog of NASA Images

and Animations of Our Home Planet (2006, http://

Vigbloser the. RASR.GOV).......0.<ceccccccssccscssccsossesescsosnsssees

National Wildlife Fed’n et al., An Unfavorable Tide:

Global Warming, Coastal Habitats and Sportfish-

ing in Florida (2006) ................0z.ccccesersersseesceseeserees

National Research Council, Climate Change Sci-

ence: An Analysis of Some Key Questions (2001).....

Outdoor Industry Found., The Active Outdoor Recrea-

Aare Boomateg (BOGE) ......ccccascececeesevscesecescsvescssosesesccese

Camille Parmesan & Gary Yohe, A Globally

Coherent Fingerprint of Climate Change Impacts

Across Natural Systems, 421 Nature 37 (2003).......

Camille Parmesan & Hector Galbraith, Pew Ctr. on

Global Climate Change, Observed Impacts of

Global Climate Change in the U.S. (2004)............+.

Pew Ctr. on Global Climate Change, Aquatic

Ecosystems and Global Climate Change (2002).......

Pew Ctr. on Global Climate Change, A Synthesis of

Potential Climate Change Impacts on the U.S.

Marjorie L. Reaka-Kudla, The Global Biodiversity

of Coral Reefs: A Comparison with Rain Forests,

in Biodiversity II: Understanding and Protecting

Our Biological Resources (M.L. Reaka-Kudla et

Terry L. Root et al., Fingerprints of Global Warming

on Wild Animals and Plants, 421 Nature 57

Vili

TABLE OF AUTHORITIES ~ Continued

Page

Terry L. Root & Stephen H. Schneider, Climate

Change: Overview and Implications for Wildlife,

in Wildlife Responses to Climate Change: North

American Case Studies (Stephen H. Schneider &

Se aie hes HEN esicihstcincccniieiissiaihiissdtthariniaitidinssitiidlaimesis 9

James Salzman, Creating Markets for Ecosystem

Services: Notes from the Field, 80 N.Y.U. L. Rev.

TEE vstinsnncincensibinipeniaininenidiieiniasiiiiacianatiatietpdainisitainaas 28

Daniel Scott et al., Climate Change and Tourism

and Recreation in North America: Exploring Re-

gional Risks and Opportunities, in Tourism, Rec-

reation and Climate Change (C.M. Hall & J.

thc: SIE hiccsivicusiciheanesiniibecbineitasdtginiiatiijesinaiatipttistimmcits 27

Lisa G. Sorensen et al., Potential Effects of Global

Warming on Water Fowl Populations Breeding in

the Northern Great Plains, 40 Climatic Change

ee renisiociontstntiniaianictiiiitiniaiiiidmenndalieeteatiiiasenaniieads 9

Brian C. Spence et al., ManTech Env. Research

Serv., An Ecosystem Approach to Salmonid Con-

servation, TR-4501-96-6057 (1996) ..00..00. ccc eee eee eee 19

Chris D. Thomas et al., Extinction Risk from

Climate Change, 427 Nature 145 (2004)................. 4,7,9

U.S. Fish & Wildlife Serv., National Survey of

Fishing, Hunting, and Wildlife-Associated Rec-

I ee icchisnencitittnnietataiteineataniisadintubnnainentianemedneeiats 26

US. Fish & Wildlife Serv., North American Water-

fowl Management Plan, Gulf Coast Joint Venture:

Texas Mid-Coast Initiative (2002) ...............ccccceeeceeeeeeees 16

ix

TABLE OF AUTHORITIES -— Continued

Page

U.S. Geological Serv., Repeat Photography Project,

Glacier National Park, MT, available at http://

nrmsc.usgs.gov/repeatphoto/download_info.htm

(website last modified Mar. 15, 2006) .....................:000 18

Marcel E. Visser & Leonard Holleman, Warmer

Springs Disrupt the Synchrony of Oak and

Winter Moth Phrenology, Proceedings of the

Royal Society B. 268 (2001)...........:cccccccecseeseereeeeeeeeennees 12

Gian-Reto Walther et al., Ecological Responses to

Recent Climate Change, 416 Nature 389

PJ. Webster et al., Changes in Tropical Cyclone

Number, Duration and Intensity in a Warming

Environment, 309 Sci. 1844 (2005) ..............:cccceeeeeeeeeees 15

A.L. Westerling et al., Warming and Earlier Spring

Increases Western U.S. Forest Wildfire Activity,

BD Bik, BE GR ce rnsvecpnsscpenstencnesioccescinsccnsccsssecsesasssesees 23

Edward O. Wilson, Biophilia (1984) ...........cccccceseeeeereeeeees 30

World View of Global Warming, Glaciers and

Glacial Warming: Receding Glaciers (2006, http://

www.worldviewofglobalwarming.org/pages/glacie

SRT cictnserneiecnantindeniiadsainlaldiaibiatialteniintdetninadiutin 13, 18

Erika Zavaleta & Jennifer L. Royval, Climate

Change and the Susceptibility of U.S. Ecosystems

to Biological Invasions: Two Cases of Expected

Range Expansion in Wildlife Responses to Cli-

mate Change (Stephen H. Schneider & Terry L.

ies Be itincchissiintibitaicenbiipinsndinnennendmneimimndiemnennets 20

Sergey A. Zimov et al., Permafrost and the Global

Carbon Budget, 312 Sci. 1613 (2006) ............cccceeeeeeeeeees 17

INTEREST OF AMICI CURIAE’

Amici organizations represent a substantial number

of hunters, anglers, bird watchers, religious groups, zoos

and aquariums, state wildlife agencies, professional

societies of wildlife biologists and other wildlife conserva-

tionists.’ Many amici, particularly the hunter, angler and

bird watcher groups, rely on abundant wildlife and

healthy ecosystems for recreation. Many amici, particu-

larly the state wildlife agencies, professional societies and

zoos and aquariums, have expertise in the scientific

aspects of wildlife management, ecosystem conservation

and the impacts of climate change on wildlife and ecosys-

tems. Many amici, particularly the religious groups, have

expertise in the ethical issues surrounding human-caused

extinctions and other harmful effects of climate change.

All amici depend on the services that healthy ecosystems

provide, appreciate how the decline of wildlife and ecosys-

tems harms the economy and quality of life in their com-

munities and have a strong and demonstrated interest in

conserving wildlife and ecosystems for future generations.

SUMMARY OF ARGUMENT

Climate change caused by greenhouse gas pollution is

threatening the legacy of abundant wildlife and natural

’ Pursuant to S.Ct.R. 37.3(a) and 37.6, the undersigned represents

that (1) all parties consented to the filing of this brief, (2) no counsel for

any party authored this brief in whole or in part, and (3) no person or

entity other than above-named amici curiae and their counsel made a

monetary contribution to the preparation or submission of this brief.

* See Appendix (identifying amici organizations by category). The

term “wildlife” is used here in its broadest sense to mean all wild

animals and plants. See The American Heritage Dictionary of the

English Language (4th ed. 2000). “Ecosystem” means a community of

_ organisms, including wild animals and plants, interacting with one

another and with the chemical and physical factors making up their

environment. See G. Tyler Miller, Jr., Environmental Science: Sustain-

ing the Earth A7 (1991).

2

beauty that Americans seek to bequeath to their children

and grandchildren.’ Abundant wildlife and healthy ecosys-

tems are the foundation of our economy and the key to our

quality of life. Billions of dollars of revenue are generated

annually in the U.S. by hunting, angling and other wild-

life-oriented recreation and by the numerous other indus-

tries, such as commercial fishing, pharmaceuticals and

agriculture, that depend on wild animals and plants and

healthy ecosystems. Natural habitats protect drinking

water, provide food and medicine and buffer communities

against floods and storms. Incalculable spiritual and

aesthetic benefits are realized when families take time

away from their busy lives to enjoy nature-based activi-

ties. Much of this is placed at risk due to the harmful

effects of greenhouse gas pollution and resultant climate

change on wildlife and ecosystems.

The Clean Air Act (“Act”) requires the EPA to address

this harm. Section 202(a)(1) of the Act states that if in the

judgment of the EPA Administrator, “any air pollutant”

from motor vehicles “cause[{s] or contribute(s] to air pollu-

tion which may reasonably be anticipated to endanger

public health or welfare,” the EPA “shall” regulate that

pollution. Under section 302(h), effects on “welfare”

include effects on “climate” and “wildlife.” Thus, the EPA

has a duty to consider whether greenhouse gases may

endanger the health and welfare of people by harming the

climate and wildlife that people depend upon.

There is virtually no disagreement among scientists

that greenhouse gas pollution harms climate and wildlife.

The leading scientific societies from the United States

and ten other nations have stated that the science on

greenhouse gas pollution’s effects on climate is now

sufficiently clear to justify nations taking prompt action.

* Greenhouse gases are air pollutants known to contribute to global

climate change by trapping heat in the atmosphere. Thomas E. Lovejoy

& Lee Hannah, Climate Change and Biodiversity 21 (2005).

3

The Intergovernmental Panel on Climate Change (“IPCC”)

has found that greenhouse gas pollution has already

caused an increase of 1 degree Fahrenheit in average

surface temperatures around the globe and that, unless

such pollution is curtailed, average surface temperatures

will increase between 2.5 to 10.4 degrees Fahrenheit in the

coming century.

Scientific experts predict that such warming would

devastate wildlife and ecosystems. Under mid-range

climate warming scenarios, as many as one-third of

species in some regions are likely to be committed to

future extinction due to climate change over the next 50

years. Many treasured wildlife species in the U.S. are at

serious risk, including waterfowl in the northern Great

Plains, crabs and oysters in Apalachicola Bay, Florida,

trout and salmon in the Pacific Northwest and polar bears

in Alaska. ,

Effects of climate change on wildlife and ecosystems

are already apparent. Even with the relatively low tem-

perature increases experienced in the past century (in

comparison with projected increases), wildlife species have

already become extinct or have been extirpated from parts

of their geographic range due to excessive temperatures.

Sea level rise has accelerated, and hurricanes and ty-

phoons have become moe intense, harming coastal

marshes that serve as nurseries for fish and provide

buffers from storms. Sea ice has melted, leading to de-

clines in at least one polar bear population. Snowpack on

Western mountains has begun shrinking, creating danger-

ously low summer flows in salmon and trout streams.

Pests have invaded forests, destroying millions of trees.

Ocean waters have become warmer, contributing to a

decline in coral reefs and increased disease in shellfish.

These and other harmful impacts of climate change

on wildlife and ecosystems pose a serious threat to

people. The United States is blessed with abundant

natural resources. These resources have served as the

backbone of many jobs and industries and have provided

\

food, medicines, flood protection and a host of other

services. Wildlife species and ecosystems have also pro-

vided recreational opportunities and solace to millions of

Americans. The EPA must act now to limit greenhouse gas

pollution to conserve these precious resources for future

generations.

ARGUMENT

I. EPA FAILED TO CONSIDER THE HARMFUL

EFFECTS OF CLIMATE CHANGE ON WILDLIFE

Climate change caused by-greenhouse gas pollution is

one of the greatest threats to wildlife in the United States

and around the globe.* Fortunately, the United States

government has many tools with which to address green-

house gas pollution and climate change. The Clean Air Act

is one of the most important of these tools.

A. The Clean Air Act Explicitly Requires that

EPA Consider Climate and Wildlife in De-

ciding Whether to Regulate Air Pollutants

Section 202(a\(1) of the Act states that if in the judg-

ment of the EPA Administrator, “any air pollutant” from

motor vehicles “cause[s] or contribute[s] to air pollution

which may reasonably be anticipated to endanger public

health or welfare,” EPA “shall” regulate that pollution.*

“Welfare” is defined by section 302(h) as including “effects

on soils, water, crops, vegetation, manmade materials,

animals, wildlife, weather, visibility and climate... .”

Thus, under the Act, the EPA Administrator has both

the authority and duty to set limits on air pollutants that

* See Chris D. Thomas et al., Extinction Risk from Climate Change,

427 Nature 145, 147 (2004). ;

® 42 U.S.C. § 7521(aX1).

* Id. § 7602(h) (emphasis added).

5

may endanger the climate or wildlife. In refusing to set

limits on greenhouse gases, EPA violated its duty to

consider the impacts of air pollutants on these critical

elements of the natural environment.

B. EPA’s Failure to Address Climate Change

and its Impacts on Wildlife Cannot Be Jus-

tified on the Ground of Scientific Uncer-

tainty

There is broad agreement among scientists — includ-

ing those from the EPA itself — that climate c e is

already harming wildlife and ecosystems, that climate

change will cause substantial additional harm in the

future if not addressed and that a substantial reduction of

greenhouse gas pollution is necessary to address this

problem.’ As each day passes without confronting this

pollution, severe ecosystem disruption and widespread

species extinction becomes more likely and more difficult

and costly to forestall. ‘

The leading scientific societies from the United States

and ten other nations made this abundantly clear in a

recently-issued joint statement:

The scientific understanding of climate change is

now sufficiently clear to justify nations takin ;

prompt action. It is vital that all nations iden:

cost-effective steps that they can take now, t

contribute to substantial and long-term reduction

in net global greenhouse gas emissions.

** *

” See infra Part II.

6

Failure to implement significant reductions in

net greenhouse gas emissions now, will make the

job much harder in the future.’

Ecosystem disruption and species extinction harms all

people by damaging the economy and otherwise reducing

quality of life.” Amici, whose members are heavily engaged

in the enjoyment and conservation of wildlife and habitats,

are directly injured by the inaction of the EPA. The Clean

Air Act mandates immediate action to prevent further

endangerment of their health and welfare.

II. CLIMATE CHANGE IS DISRUPTING THE

ECOSYSTEMS THAT SUSTAIN WILDLIFE

AND PEOPLE

There is virtually no dispute within the scientific

community that greenhouse gas pollution from the burn-

ing of fossil fuels (coal, natural gas and oil) is causing, and

will continue to cause, global climate change.” The aver-

age global temperature has risen more than 1 degree

Fahrenheit during the past century, and the concentration

of carbon dioxide in the atmosphere is now higher than at

any time during the past 650,000 years.” According to the

National Research Council, in a report requested by the

Bush Administration, this human-induced warming and

its associated sea level rise are expected to continue

* Joint Science Academies’ Statement: Global Response to Climate

Change (June 7, 2005) at 1, available at http://www.royalsoc.ac.uk/

displaypagedoc.asp?id=20742.

* See infra Part III.

* See Intergovernmental Panel on Climate Change, Climate

Change 2001: Synthesis Report 4-5 (2001) (hereinafter IPCC, Synthesis

Report 2001}.

" Intergovernr atal Panel on Climate Change, Summary for

Policymakers: A Report of Working Group I of the IPCC at 2, 7 (2001)

{hereinafter IPCC, Summary for Policymakers]; Edward J. Brook,

Atmospheric Science: Tiny Bubbles Tell All, 310 Sci. 1285-87 (2005).

<= qeeeue- equa « gee eee

7

through the 21st century.” Without sufficient action to

reduce greenhouse gas pollution, scientists estimate that

the average surface temperatures across the globe will

increase between 2.5 to 10.4 degrees Fahrenheit in the

coming century.”

The overall consequences of such climate change for

wildlife and people would be disastrous.'* Under mid-range

climate warming scenarios, as many as one-third of

species in some regions are likely to be “committed to

future extinction” due to climate change over the next 50

years.” Such a massive loss of biological diversity would

wreak havoc on the ecosystems that people depend upon

for their livelihoods and quality of life. The following are

some of the most striking examples of climate change’s

harmful impacts on wildlife and people.

A. Wildlife Faces Increased Risks of Extinc-

tion Due to Rising Surface Temperatures

Every wildlife species has a particular set of tempera-

ture conditions in which it has evolved and which it relies

upon for its survival. For many species, the increases in

surface temperatures forecasted for the coming decades

will make current habitats unsuitable. Unless they are

* National Research Council, Climate Change Science: An Analysis

of Some Key Questions 1 (2001). é

* IPCC, Summary for Policymakers, supra, at 13.

“ Although some species wil) probably benefit from warming

trends, many of these will be invasive and harmful to people and native

wildlife. See Doug Inkley, The Wildlife Society, Global Climate Change

and Wildlife 8 (2004).

* Thomas et al., Extinction Risk from Climate Change, supra, at

147. ?

* Pew Ctr. on Global Climate Change, A Synthesis of Potential

Climate Change Impacts on the U.S. iii, 14-15 (2004).

8

able to move into new and more suitable habitats, they

will face the threat of extinction.”

Scientists have studied the effects of the past cen-

turys temperature increases on wildlife to obtain clues

about the changes to be expected in the coming decades.

This research shows that even relatively small tempera-

ture increases will disrupt ecosystems and the ecological

communities of plants and animals within those ecosys-

tems.”

One key scientific finding is that the geographic

ranges of numerous wildlife species around the world are

shifting, either toward the poles or up mountain slopes, in

concert with regional warming trends.” Since the mid-

20th century, wildlife has moved toward the poles an

average of four miles per decade and upslope an average of

20 feet per decade.”

This geographic shift does not mean that the species

are adapting to climate change. In fact, many species are

projected to lose habitats at the edge of the range nearest

to the equator, or at the lowest elevations, without gaining

habitats at the edge of the range nearest to the poles or at

” Id. at 14.

* See Camille Parmesan & Gary Yohe, A Globally Coherent

Fingerprint of Climate Change Impacts Across Natural Systems, 421

Nature 37, 42 (2003) (statistical review of historical observations of

1,700 species shows that climate change is causing a “clear pattern” of

changes to species and is “an important driving force on natural

systems”) [hereinafter A Globally Coherent Fingerprint]; Terry L. Root

et al., Fingerprints of Global Warming on Wild Animals and Plants, 421

Nature 57-60 (2003) (meta-analysis of 143 studies reveals a “significant

impact” of climate change on animal and plant populations); Gian-Reto

Walther et al., Ecological Responses to Recent Climate Change, 416

Nature, 389, 394 (2002) (review of extensive body of scientific studies

shows that climate change is altering range, distribution and seasonal

cycles of species and composition and dynamics of ecological communi-

ties).

” A Globally Coherent Fingerprint, supra, at 37.

* Id.

9

higher elevations.” This habitat loss increases the likeli-

hood of extinction.

Among the reasons why many species will not be able

to shift to new habitats in response to intolerable tempera-

ture conditions is because key resources (e.g., food supply,

appropriate soils) are not available there.” For example,

scientists project that the prairie pothole region of the

northern Great Plains, the most important breeding area

for ducks in North America, will lose many of its unique

wetlands if warming trends continue.” As suitable wet-

lands become unavailable, ducks may be displaced north-

ward. However, wetlands to the north hold less water in

the spring, and thus ducks moving there will have signifi-

cantly reduced breeding potential.” The decline of ducks

from the prairie pothole region would seriously harm

hunters and bird watchers and the many businesses that

serve these large numbers of wildlife enthusiasts.

Another reason many species will not be able to shift

into new habitats is because of natural obstacles to

™ See Terry L. Root & Stephen H. Schneider, Climate Change:

Overview and Implications for Wildlife 5-6 in Wildlife Responses to

Climate Change: North American Case Studies (Stephen H. Schneider

& Terry L. Root eds. 2002); Walther et al., Ecological Responses to

Recent Climate Change, supra, at 394. |

* See Root et al., Fingerprints of Global Warming on Wild Animals

and Plants, supra, at 59. Similarly, species may not be able to shift because

other species with which they are interconnected may fail to move in

tandem, id., and invasive species may limit their ability to persist in their

new habitats. Thomas et al., Extinction Risk from Climate Change, supra,

at 147; Habiba Gitay et al., Intergovernmental Panel on Climate Change,

Climate Change and Biodiversity, IPCC Technical Paper V 32 (2002)

(Hereinafter Gitay, [PCC Technical Paper V).

* W. Carter Johnson et al., Vulnerability of Northern Prairie

Wetlands to Climate Change, 55 BioSci. 863, 871 (2005).

* See Lisa G. Sorensen et al., Potential Effects of Global Warming

on Water Fowl Populations Breeding in the Northern Great Plains, 40

Climatic Change 343-69 (1998).

10

movement, such as large water bodies (which create

barriers for terrestrial species) and coastlines (for marine

and estuarine species).” A study of potential effects of

increased warming in Apalachicola Bay, Florida, showed

that important fishery species, including crabs, shrimp,

oysters and flounder, might not be able to survive past this

century due to their inability to move into more tolerable

temperature conditions.” Apalachicola Bay has one of the

largest commercial oyster fisheries in the world, and :i is

also renowned for saltwater recreational fishing. Increased

water temperatures, combined with sea level rise, put this

irreplaceable resource in jeopardy. In this way, climate

change directly harms commercial fishermen, recreational

fishermen, seafood lovers, tourists and the many busi-

nesses that serve these people.

The “most threatening aspect of climate change for

biodiversity” is the role of habitat fragmentation in block-

ing wildlife movement.” As temperatures increase in

current habitats, nearby highways, cities, subdivisions,

farms and other kinds of human activity will greatly limit

the ability of wildlife to move to habitats with more

suitable temperature conditions.”

The Edith’s checkerspot butterfly is an example of a

species that is disappearing from parts of its range and

edging closer to extinction due to the combined effects of

climate change and habitat fragmentation. Three subspe-

cies of this butterfly are already endangered due to habitat

* See Camille Parmesan, Biotic Response: Range and Abundance

Changes, in Lovejoy & Hannah, supra, at 52.

* Robert J. Livingston, Projected Changes in Estuarine Conditions

Based on Models of Long-Term Atmospheric Alteration, in U.S. EPA,

The Potential Effects of Global Climate Change on the United States:

Report to Congress 339-40 (Joel B. Smith & Dennis Tirpak eds. 1989).

* Lee Hannah et al., Biodiversity and Climate Change in Context,

in Lovejoy & Hannah, supra, at 4.

* Walther et al., Ecological Responses to Recent Climate Change,

supra, at 394.

11

fragmentation.” Because increased temperatures are

drying up the butterfly’s host plant and because the

butterfly cannot disperse to the north (it is blocked by

human development), 80 percent of historical populations

in the southern end of the species’ range in California and

Mexico have recently disappeared.”

With these extirpations, the Edith checkerspot butter-

fly's range has shifted northward by 55 miles and upward

in elevation by 409 feet. Unfortunately, these losses have

not been accompanied by gains in other parts of the

species’ range, where extirpations are also occurring,

albeit at a slower pace.” For the Edith’s checkerspot

butterfly, a geographic shift does not mean that the species

is adapting to climate change; it simply means that popu- —

lation declines have accelerated in parts of the species’

range.

Increased surface temperatures around the world are

also causing alterations in the timing of seasonal activities

of wildlife.” As with geographic shifts, these alterations

appear across numerous taxonomic groups and geographic

regions. Examples of spring events with altered timing

include earlier breeding of birds, earlier arrivals of mi-

grant birds in the spring, earlier appearance of butterflies,

earlier breeding choruses and spawning in amphibians

and earlier sprouting and flowering of plants.”

* Camille Parmesan & Hector Galbraith, Pew Ctr. on Global

Climate Change, Observed Impacts of Global Climate Change in the

U.S. 24 (2004).

* Id.

” Id.

* Id.

* Terry L. Root & Lee Hughes, Present and Future Phenological

Changes in Wild Plants and Animals, in Lovejoy & Hannah, supra, at

61-69.

“ Id. at 63; see also A Globally Coherent Fingerprint, supra, at 38.

12

Over the course of the past half-century, the timing of

these spring events has changed dramatically. In a meta-

analysis of 64 studies, researchers found that in each of

the last five decades, spring events in temperate zones

took place an average of five days earlier than the decade

before it.” The only explanation for these disturbing

phenomena was climate change.”

Shifts in seasonal activities are problematic because

species that normally interact with each other do not

necessarily shift in unison.” When the seasonal activities

of normally interacting species are out of synch, ecological

communities can be torn apart, leading to numerous

extirpations and extinctions.”

For example, the caterpillars of the winter moth,

which rely solely on young oak leaves for food, now hatch

earlier due to warming trends.” Unfortunately, the date

on which oaks bear their first leaves has not changed

significantly, so the caterpillars are now in decline due

to lack of food.“ A caterpillar’s loss of food supply

immediately affects the food web because, with far fewer

caterpillars, birds have less prey.” This loss of prey could

lead to the decline and extinction of one or more species of

birds.

Once a species becomes extinct, it is gone forever.

Such an irreversible loss reverberates throughout the

* Root et al., Fingerprints of Global Warming on Wild Animals and

Plants, supra, at 59. :,

* Id.

*” Root & Hughes, Present and Future Phenological Changes in

Wild Plants and Animals, in Lovejoy & Hannah, supra, at 64.

* Tim Flannery, The Weather Makers 89 (2005).

* Marcel E. Visser & Leonard Holleman, Warmer Springs Disrupt

the Synchrony of Oak and Winter Moth Phrenology, Proceedings of the

Royal Society B. 268, 289-94 (2001).

* Id.

“ Id.; see also Flannery, supra, at 89-90.

-

13

ecosystem and ultimately harms people. For example, a

bird’s extinction means the disappearance of key services

that birds typically provide, such as pollination of plants,

dispersal of seeds, and control of insects.” These are

services that farmers, nurseries, gardeners and many

others depend upon for their livelihoods and quality of life.

The best chance for preventing or minimizing such

losses is to take prompt action to limit the greenhouse gas

pollution that is causing the increased surface tempera-

tures and resultant disruptions of wildlife and ecosystems.

B. Rising Sea Levels and Intensified Hurri-

canes and Typhoons Jeopardize Coastal

Wildlife and Ecosystems

The aspect of climate change that poses the most

dramatic threat to people and wildlife is the rapid melting

of glaciers and the polar ice fields of Antarctica and

Greenland.“ Accompanying this melting is the thermal

expansion of the oceans, also caused by increased surface

temperatures (warmer water occupies more space). To-

gether these phenomena are causing an accelerated rise in

sea levels.“ Average global sea levels rose 4 to 8 inches over

the 20th century, and the IPCC projects an additional rise

of 4 to 35 inches by 2100.“ Recent scientific discoveries

© Id.

“ See World View of Global Warming, Glaciers and Glacial

Warming: Receding Glaciers (2006), http://www.worldviewofglobal

warming.org/pages/glaciers.htm]) (see photos and discussion of Green-

land Glacier); NASA, Arctic Sea Ice Continues to Decline, Arctic

Temperatures Continue to Rise in 2005 (Sept. 28, 2005), http//www.nasa.

gov/centers/goddard/news/topstory/2005/arcticice_decline.html) (showing

declines in Arctic ice fields with images of sea ice minimums in 1979

and 2005).

“ IPCC, Synthesis Report 2001, supra, at 6.

“ Id.

14

concerning the rapid melting of polar ice fields suggest

that this estimate may be too conservative.”

Sea level rise is among the most costly and certain

consequences of greenhouse gas pollution.” In addition to

endangering people and destroying property, it places

low-lying coastal ecosystems, and the wildlife that inhab-

its them, in considerable jeopardy.” These vulnerable

ecosystems support commercial and recreational fishing

and tourism and provide incalculable aesthetic benefits.”

Rising seawater harms coastal ecosystems in a variety

of ways. Salt marshes and other shallow habitats adapted

to saltwater environments are overwhelmed by the in-

creasing depth of the water and the loss of sunlight,

oxygen and nutrient flows.” Seawater is toxic to brackish

water species, and brackish water is toxic to freshwater

species. Rising sea levels will disturb the delicate balance

between aquatic species and the sunlight, oxygen, nutri-

ents and salinity in their habitats, especially in areas

where ecosystems are unable to migrate inland because of

human development.” Sea level rise alone is projected to

destroy 20 percent of coastal wetlands around the globe by

2080.”

This destruction of cdastal wetlands will likely have

devastating effects on commercial and recreational fishing

around the world. For example, along Florida’s gradually-

sloped shores, a 15 inch rise in sea level would cause water

to advance inland by about 250 feet, eroding coastal

“ See Flannary, supra, at 146-50; Julian A. Dowdeswell, The

Greenland Ice Sheet and Global Sea-Level Rise, 311 Sci. 963-64 (2006).

” See Inkley et al., supra, at 7.

* Id.

“ See infra Part III.

” Sam H. Pearsall, Managing for Future Change on the Albermarle

Sound, in Lovejoy & Hannah, supra, at 359.

” See id.

” Gitay, IPCC Technical Paper V, supra, at 1.

15

shorelines and inundating and altering wetlands,

saltmarshes and other habitats. In fact, nearly 50 percent

of critical saltmarsh and 84 percent of tidal flats could be

lost. Because Florida’s marine fish and shellfish species

depend on saltmarshes, seagrass beds and other bay and

estuary habitats, the projected sea level rise could devas-

tate Florida’s commercial and recreational fisheries.”

Exacerbating the problem of sea level rise is the

increased intensity of hurricanes and typhoons. During

the past few decades of steadily increasing surface tem-

peratures, the number of category 4 and 5 hurricanes and

typhoons recorded around the globe has almost doubled,

and the total amount of energy released by hurricanes and

typhoons has increased by 60 percent.“ The combined

effects of sea level rise and storm surges from hurricanes

and typhoons is expected to wreak havoc on low-lying

coastal habitats and could even result in saltwater intru-

sion into freshwater aquifers, which supply drfhking water

for many communities.”

The climate change impacts of sea level rise and storm

surges will worsen the damage already being caused by a

host of non-climate-related human activities. For example,

groundwater withdrawal, levee construction and dredging

projects in river systems have reduced sediment accumu-

lation in river deltas, leading to flooding and loss of land.”

Sea level rise and storm surges fueled by climate change

make flooding worse and greatly increase land loss.

” National Wildlife Fed’n et al., An Unfavorable Tide: Global

Warming, Coastal Habitats and Sportfishing in Florida 4, 6 (2006)>

“ PJ. Webster et al. Changes in Tropical Cyclone Number,

Duration and Intensity in a Warming Environment, 309 Sci. 1844

(2005); Kerry Emanuel, Increasing Destructiveness of Tropical Cyclones

Over the Past 30 Years, 436 Nature 686 (2005).

“ Gitay, IPCC Technical Paper V, supra, at 20.

* Id.

16

This is exactly what has occurred in the Mississippi

River delta, where alterations of the Mississippi River

combined with sea level rise to convert nearly one million

acres of coastal marshes to open water in the latter half of

the 20th century.” These losses worsened dramatically

when Hurricane Katrina roared through the Mississippi

delta in 2005, destroying what once was a 40-mile-long set

of barrier islands.”

By destroying coastal marshes, sea level rise and

intensified hurricanes and typhoons threaten time-

honored recreational activities such as waterfowl hunting

and wildlife viewing. Waterfowl species threatened by

destruction of coastal marshes include redheads, lesser

scaup and canvasbacks.”

C. Disappearing Permafrost, Sea Ice and Snow

Jeopardize Wildlife and Ecosystems

Any discussion of disappearing snow and ice must

begin with the Arctic region, which is among the fastest-

warming regions on the planet. The average - annual

temperature in the Arctic has risen at nearly twice the

rate as the rest of the world, with the greatest increase

occurring in winter months.” As a result, permafrost is

thawing, with tundra habitat rapidly disappearing and

giving way to lakes, wetlands, trees and shrubs.” Some of

these areas are expected to ultimately turn into cold

” Virginia Burkett & Jon Kusler, Climate Change: Potential

Impacts and Interactions in Wetlands of the United States, 36 J. of the

Am. Water Res. Ass’n 313-20 (2000).

* See Flannery, supra, at 313; see also infra Part II.G.

” US. Fish & Wildlife Serv., North American Waterfowl Manage-

ment Plan, Gulf Coast Joint Venture: Texas Mid-Coast Initiative (2002).

” Susan Joy Hassol et al., Arctic Climate Impact Assessment,

Impacts of a Warming Arctic 19, 22 (2004).

* Id. at 48.

17

deserts because soil types are not suitable for holding

water on the land.”

The tundra has served as major breeding and nesting

grounds for a variety of migratory waterfowl as well as

habitat for species, such as caribou, important to indige-

nous people’s diets.” With the loss of tundra habitat,

wildlife enthusiasts in the continental U.S. and indigenous.

people in the Arctic all suffer.”

Sea ice also is rapidly disappearing from the Arctic. In

the past three decades, sea ice thickness in the late sum-

mer and early autumn has decreased by 40 percent.” If

this melting continues as projected, it will have dire

consequences for Arctic wildlife and the indigenous people

who rely upon this wildlife for their survival. An early sign

of the possible future is found in James and Hudson Bays

in Canada, where polar bears suffered 15 percent declines

in average weight and in number of cubs born in a recent

15-year period.” Because polar bears are dependent on sea

ice for hunting, and because periods without sea ice have

increased, these bears are going longer without feeding,

and as a result suffering declines in reproduction and

overall health. Polar bears are “unlikely” to survive the

end of this century if, as some climate models predict,

summer sea-ice cover completely disappears from their

habitats.” The prospects for a number of other Arctic

species, such as the walrus, ivory gulls, little auks and

“ Id. at 49.

“ Gitay, IPCC Technical Paper V, supra, at 32.

“ In addition to serving as important wildlife habitat, tundra is

also a significant carbon reservoir. When permafrost thaws, this carbon

is released to the atmosphere and climate change accelerates further.

Sergey A. Zimov et al., Permafrost and the Global Carbon Budget, 312

Sci. 1613 (2006).

“ Gitay, IPCC Technical Paper V, supra, at 29.

“ Hassol et al. supra, at 58.

* Id.

18

several species of seals, are equally bleak if the sea ice

continues to melt as forecasted under current warming

trends.” Thus, the recent decline of the polar bear could

mark the beginning of the collapse of the entire Arctic

ecosystem.”

Disappearance of snow could have even more far-

reaching effects than disappearance of sea ice. On average,

snow cover has decreased by 10 percent in the Northern

Hemisphere in the past four decades.” There has also been

a widespread retreat of glaciers across the globe.” In the

western United States and many other places, snow

provides the primary means of storage of winter precipita-

tion, effectively transferring water from the relatively wet

winters to the typically-dry-summers.” Since the middle of

last century, much of the West has experienced declines in

spring snowpack, despite increases in winter precipitation

in many places. Earlier spring peak flows and lower

summer flows have become increasingly common.”

* Id. at 58-59.

® See Flannery, supra, at 102.

” Gitay, IPCC Technical Paper V, supra, at 6.

™ Id. See also World View of Global Warming (2006), http://www.

worldviewofglobalwarming.org/pages/glaciers.htm] (see photos and

discussion of numerous glaciers); U.S. Geological Serv., Repeat Photog-

raphy Project, Glacier National Park, MT, available at http://nrmsc.

usgs.gov/repeatphoto/download_info.htm (website last modified Mar.

15, 2006) (showing side-by-side photographs taken over the last century

of numerous glaciers in Glacier National Park); NASA, Visible Earth,

A Catalog of NASA Images and Animations of Our Home Planet,

available at http://visibleearth.nasa.gov/view_rec.php?id=1586 (data-

base updated June 8, 2006) (showing image of the Larsen Ice Shelf in

Antarctica and explaining that it is splintering as a result of warmer

temperatures).

™ Impacts of Climate Change: Hearing Before the Senate Comm. on

Commerce, Sci. & Transp., 108th Cong. (2004) (testimony of Dr. Phillip

W. Mote).

* Id.

19

For the many people whose lives are tied to the health

of the nation’s trout and salmon-bearing rivers and

streams, these changes are worrisome. Many rivers and

streams already have unnaturally high temperatures and

low flows due to activities such as dam-building, riparian

land conversion and irrigation.“ Earlier spring peak flows

and lower summer flows exacerbate these problems by,

among other things, making it more difficult for adult fish

to navigate upstream to spawn.” In addition, lower-than-

normal flows in the summer reduce the number of cool,

deep water pools that fish need to survive excessive heat.”

If reduced summer flows and other factors significantly

increase average summer water temperatures as fore-

casted, this could render uninhabitable much of the

remaining stream habitat of the nation’s trout and salmon

species.” -

A wide variety of habitats, ranging from the polar

bear’s sea ice hunting grounds to the rivers and streams

inhabited by trout and salmon, are at great risk due to

global climate change and the resulting melting of ice and

snow. The disappearance of polar bears, caribou, wild trout

and salmon, and other ice- or snow-dependent flora and

fauna will seriously harm the indigenous people of Alaska,

* See, e.g., James Kardouni & Nicoleta Cristea, Quality Assurance

Project Plan. Snoqualmie River Temperature Total Maximum Daily

Load, Wash. Dep’t of Ecology, Pub. No. 06-03-106 (July 2006) at 12-13

(spawning area for threatened fall Chinook salmon is listed as impaired

under Clean Water Act § 303(d) due to excessive temperature).

” Brian C. Spence et al., ManTech Env. Research Serv., An

Ecosystem Approach to Salmonid Conservation, TR-4501-96-6057

(1996).

* Joseph Ebersole et al., Thermal Heterogeneity, Stream Channel

Morphology and Salmonid Abundance in Northeast Oregon Streams, 60

Can. J. of Fisheries & Aquatic Sci. 1266-80 (2003).

” See Kirkman O'Neal, Defenders of Wildlife & Natural Res. Def.

Council, Effects of Global Warming on Trout and Salmon in U.S.

Streams (2002); Pew Ctr. on Global Climate Change, Aquatic Ecosys-

tems and Global Climate Change 7-9 (2002).

20

the commercial and recreational fishermen of the conti-

nental U.S., and the many other people who rely upon

these resources for their livelihoods and quality of life.

D. Invasive Species, Pathogens and Pests Are

an Increasing Threat to Wildlife Due to

Climate Change

Invasive species, pathogens and pests are all projected

to increase as greenhouse gas pollution increases and

associated warming trends continue, and each is expected

to increase the vulnerability of native wildlife and ecosys-

tems.” Invasive species are projected to become increas-

ingly prevalent through two pathways: colonization of

vegetation communities that have suffered dieback as a

result of new temperature and precipitation conditions,

and poleward and upslope expansion.” An example of an

invasive species using the latter approach to benefit from

climate change is the Chinese tallow, a freeze-intolerant

tree species which is rapidly expanding in the Gulf Coast

states and which can be expected to move northward as

freeze-free zones expand.”

Similarly, tropical and subtropical diseases are pro-

jected to move poleward or upslope as higher latitude and

higher elevation habitats become increasingly warm and

moist." For example, mosquito-borne diseases have

expanded in recent decades in concert with the steady rise

™ See Inkley et al., supra, at 8; Gitay, JPCC Technical Paper V,

supra, at 32.

” Erika Zavaleta & Jennifer L. Royval, Climate Change and the

Susceptibility of U.S. Ecosystems to Biological Invasions: Two Cases of

Expected Range Expansion in Wildlife Responses to Climate Change 277

(Stephen H. Schneider & Terry L. Root eds. 2002).

” Inkley et al., supra, at 8.

" See id. at 9.

21

in annual temperatures in the highlands of Asia, East

Africa and Latin America.”

Warmer temperatures also are a significant factor in

the growing incidence, range and severity of marine and

estuarine diseases. When water temperatures exceed an

optimal threshold, some marine and estuarine species

become stressed and more susceptible to disease.” For

example, as a result of warmer conditions in the Gulf of

Mexico and along the east coast of the United States, the

Eastern oyster has suffered an increased prevalence and

intensity of diseases.“ Economic impacts include reduced

shellfish harvests and recreational fishing and declining

sales in the tourism, fishing and restaurant trade.”

Climate-change-related disease also is playing a role

in the wave of amphibian extinctions now taking place

around the globe. Up to 22 of the world’s amphibian

species have become extinct since just 1980 and roughly

one-third are currently threatened with extinction. One of

the leading threats, a disease known as chytridiomycosis,

is linked directly to climate change because warming

creates the conditions ideal for its persistence and

spread.” Amphibians have great potential for assisting

researchers in the fields of biotechnology and medicine. If

not addressed, climate change would not only potentially

drive many amphibian species to extinction, but also

“ Walther et al., Ecological Responses to Recent Climate Change,

supra, at 391.

© C.D. Harvell et al., Emerging Marine Diseases - Climate Links

and Anthropogenic Factors, 285 Sci. 1507 (1999).

“ PR. Epstein, Center for Health & the Global Envt., Harvard

Med. Sch., Marine Ecosystems: Emerging Diseases as Indicators of

Change (1998).

“ Center for Health and the Global Envt., Harvard Med. Sch.,

Climate Change Futures Health, Ecological and Economic Dimensions

83 (2005) [hereinafter Climate Change Futures).

“ Joseph R. Mendelson III et al., Confronting Amphibian Declines

and Extinctions, 313 Sci. 48 (2006).

22

reduce researchers’ chances of finding cures for cancer and

other human diseases.

An increased frequency of pest outbreaks, especially

in forest ecosystems, is also linked to climate change.” For

example, in some high elevation areas in the southwestern —

United States, more than 90 percent of the pifion pine

forest has died due to infestations of the bark beetle.

Recent drought conditions, corresponding with regional

warming trends, have made the trees much more suscep-

tible to such infestations. If warming trends in the South-

west continue as projected, such forest die-offs will be

more severe and extensive in the future.”

Climate-change-related pest infestations threaten to

impose losses on a wide range of industries, including

tourism (due to reduced scenic quality and recreational

opportunities), food (due to loss of citrus and maple trees),

and real estate development (due to increased vulnerabil-

ity of forests to fires, erosion and landslides).”

E. Changes in Precipitation and Humidity

Threaten Wildlife and Ecosystems

Climate change has led to severe reductions in pre-

cipitation and humidity in a number of regions around the

world. For example, the western U.S. is now drier than at

any other time in 700 years. Increased temperatures in

the Pacific Ocean have shifted the jet stream (a wind

current that affects snow and rain in North America)

northward, leaving much of the western U.S. in severe

drought.” These conditions pose a severe risk to wildlife

” Gitay, IPCC Technical Paper V, supra, at 32.

“ David D. Breshears et al., Regional Vegetation Die-off in Re-

sponse to Global-Change-Type Drought, 102 Proceedings of the Nat’

Academy of Sciences (Oct. 18, 2005), at 15144-48.

* Id.

” See Flannery, supra, at 132. Some experts believe that climate

change is having a permanent impact on the El Nifio-La Nifia cycle of

(Continued on following page)

23

and ecosystems, especially due to fire. In the 1987-2003

time period, Western forests experienced a four-fold

increase in numbers of large fires, and a seven-fold in-

crease in federal land acres burned, compared to the

previous 17-year period.” Although some fire is beneficial

to the forest ecosystems of the western U.S., larger, more

intense and more frequent wildfires caused by severe

drought conditions threaten nearby homesteads, destroy

old-growth forests, cause erosion and pose a host of other

problems for endangered wildlife.”

Increased ocean temperatures have also caused drying

of tropical rainforests. The “first documented victim of

global warming,” the golden toad, was driven extinct in

the 1980s by the decline of moisture in its Costa Rican

rainforest habitat, which was in turn caused by the abrupt

rise in sea surface temperatures in the central western

Pacific.” The golden toad evolved in a specific habitat

niche with a specific level of humidity. Once that humidity

disappeared, the species was doomed.

F. Increased Water Temperatures and Acidifi-

cation Jeopardize Ocean Wildlife and Eco-

systems

There is strong evidence that two features of green-

house gas pollution - warmer temperatures and acidifica-

tion (caused by absorption of carbon dioxide into water) —

are harming ocean wildlife and ecosystems.

One of the most visible effects of warming of ocean

waters is bleaching of coral reefs. Coral reefs have

climate events that, among other things, determines the position of the

jet stream. Jd. at 84.

” A.L. Westerling et al, Warming and Earlier Spring Increases

Western U.S. Forest Wildfire Activity, 313 Sci. 940, 941 (2006).

” See Donald McKenzie et al., Climate Change, Wildfire, and

Conservation, 18 Conservation Biology 890 (2004).

” Flannery, supra, at 118.

24

sometimes been referred to as the “rain forests of the

ocean” due to their diversity of life forms and spectacular

beauty.” Bleaching occurs when the algae which lives

symbiotically with the coral has died. Although coral can

sometimes recover from bleaching, repeated and lengthy

bleaching events with subsequent coral die-offs have

occurred around the world in recent decades, and scien-

tists have pinpointed the cause: ocean warming and

intense E] Nifio events.” Scientists project that a majority

of coral reefs around the world are likely to face extensive

coral bleaching within the next 20 to 40 years if climate

change continues unabated.”

Rising ocean temperatures are also causing significant

changes in the marine food web in many regions. Plank-

ton, organisms that form the base of the marine food web,

rely upon nutrient-rich waters from the ocean depths as

their primary food source. However, since 1977, warm

water events have become increasingly frequent along the

Pacific coast of the United States and, as a result, upwell-

ing of deep, nutrient-rich waters has decreased. This has

caused plankton to decline and has put virtually every

marine species at risk, from the fish and invertebrates

that eat the plankton to the seabirds and mammals that

eat the fish. In less than 30 years, zooplankton in the

region has declined 70 percent, fish larvae 50 percent and

“ Marjorie L. Reaka-Kudla, The Global Biodiversity of Coral Reefs:

A Comparison with Rain Forests, in Biodiversity II: Understanding and

Protecting Our Biological Resources, Chapter 7 (Marjorie L. Reaka-

Kudla et al., eds., 1997).

* R.W. Buddemeier et al., Pew Ctr. on Global Climate Change,

Coral Reefs & Global Climate Change: Potential Contributions of

Climate Change to Stresses on Coral Reef Ecosystems 15 (2004). See also

note 90.

* Simon D. Donner et al., Global Assessment of Coral Bleaching

and Required Rates of Adaptation Under Climate Change, 11 Global

Change Biology 2251 (2005).

25

seabirds 30 percent.” If current trends in ocean warming

continue, the vast commercial fishing industry could suffer

extensive losses, jeopardizing the regional economy and a

significant part of the nation’s food supply.

Rising atmospheric concentrations of carbon dioxide

are also increasing the acidity of the world’s oceans. As a

result of the increased acidity, numerous marine organ-

isms are less able to absorb key minerals, such as calcium,

that make up their skeletal structures.” This poses serious

risks to many of the ocean’s ecological systems. For exam-

ple, acidification could lead to the collapse of coral reef

ecosystems, which would have devastating impacts on

people and businesses in south Florida, the Caribbean and

other tropical regions.

III. CONSERVING ABUNDANT WILDLIFE AND

HEALTHY ECOSYSTEMS IS ESSENTIAL TO

THE NATION’S ECONOMY AND QUALITY OF

LIFE

A. Hunting, Fishing and Other Wildlife-Oriented

Activities Help Fuel a Large Part of the

Economy

The EPA's refusal to limit greenhouse gas pollution

under the Clean Air Act has enormous detrimental conse-

quences for people in the United States and around the

world. As discussed supra, those who hunt, fish and

otherwise enjoy wildlife-oriented recreation, and the many

” John A. McGowan et al., The Biological Response to the 1977

Regime Shift in the California Current, 50 Deep-Sea Research II 2567-

82 (2003). Zooplankton, tiny ocean animals that drift along with ocean

currents, are among the several types of plankton.

* Joan A. Kleypas et al., NSF, NOAA & USGS, Impacts of Ocean

Acidification on Coral Reefs and Other Marine Calcifiers: A Guide for

Future Research, Report of a Workshop on April 18-20, 2005, Sponsored

by NSF, NOAA & USGS 1 (2006).

26

businesses that serve them, are directly and immediately

affected.

A recent study by the Outdoor Industry Foundation

shows what a crucial role these individuals and businesses

play in the U.S. economy. According to the study, active

outdoor recreation, which includes camping, fishing,

hunting, paddling, hiking and wildlife viewing, contributes

a total of $730 billion annually to the U.S. economy,

supports 6.5 million jobs (1 in 20 U.S. jobs), generates $88

billion in federal and state tax revenue and stimulates 8 ©

percent of all consumer spending.”

To date, no one has estimated what percentage of this

economic activity would be lost under various climate

change scenarios. However, studies focusing on parts of

the puzzle show that losses will be dramatic if greenhouse

gas pollution is not significantly reduced. For example, the

EPA’s own experts estimate that the potential economic

losses in cold-water recreational fishing in the U.S. due to

climate change will be $1.3 to $3 billion per year.’”

Losses of wildlife-oriented recreational opportunities

are typically intertwined with a host of other economic

losses projected to flow from climate change. For example,

* Outdoor Industry Found., The Active Outdoor Recreation

Economy (2006). The study also includes within its definition of active

outdoor recreation snow sports and bicycling, which arguably are not

directly dependent on abundant wildlife and healthy ecosystems. If

these activities are removed from the study’s statistics, the impact of

wildlife-oriented recreation would still be quite sizable: $531 billion

annually added to the economy, supporting 4.8 million jobs, and

generating $61 billion in federal and state tax revenue. Jd. at 19. See

also U.S. Fish & Wildlife Serv., National Survey of Fishing, Hunting,

and Wildlife-Associated Recreation (2001) (more than 82 million U.S.

residents fished, hunted, or viewed wildlife in 2001; spending on these

three activities totaled $108 billion).

’* Susan Herrod Julius, U.S. EPA Global Change Research

Program, What Are the Potential Impacts of Climate Change on Fresh

Water Recreational Fishing Opportunities in the U.S.? Presentation to

the Water Ecology and Climate Change Workshop (June 15, 2001).

27

as noted supra, climate change is projected to have devas-

tating impacts on coral reefs around the world. Healthy

reef ecosystems support a commercial and recreational

fishing industry worth billions of dollars, and some devel-

oping countries rely on reef fisheries for virtually all of

their animal protein consumption. Reefs protect coasts by

reducing storm damage and erosion due to intense wave

action, and many regions depend on reefs for their tourism

industries. Studies in the Indian Ocean region show that a

single catastrophic episode of coral reef bleaching would

cost up to $18 billion to the region’s economy.”

Losses would likely be much larger for communities

and businesses dependent on the reefs in south Florida

and the Caribbean, where coastal development and tour-

ism is much more extensive. For example, the total value

of reef-related shoreline protective services in the Carib-

bean region alone has been estimated to be between $740

million and $2.2 billion per year,” and the reefs of the

Florida Keys alone generated $4.4 billion in tourism

revenues in 2000-01. Climate change has placed this

wildlife treasure and economic engine in serious jeop-

ardy.’

B. Healthy Ecosystems Provide Services that

Sustain the Economy

Conserving wildlife and ecosystems has many eco-

nomic benefits to people beyond those that are quantified

in the marketplace. Ecosystems perform fundamental life-

support services without which human civilizations would

Climate Change Futures, supra, at 81.

‘* Id. at 77.

‘* Daniel Scott et al., Climate Change and Tourism and Recreation

in North America: Exploring Regional Risks and Opportunities, in

Tourism, Recreation and Climate Change 126 (C. M. Hall & J. Higham

eds., 2005).

28

cease to thrive.“ These include the purification of air and

water, detoxification and decomposition of wastes, regula-

tion of climate, regeneration of soil fertility and production

and maintenance of biodiversity.”

Agricultural, pharmaceutical, commercial fishing and

numerous other industries that harvest natural resources

sectors depend on healthy ecosystems. For these indus-

tries, which represent large portions of the economy, there

is significant potential for disruption of current harvesting

practices and livelihoods under climate change scenar-

ios."

Fish is the leading source of animal protein for the

world’s population, with the annual catch valued between

$50 billion and $100 billion.” Significant harvest reduc-

tions in the commercial fishing industry (valued at $8.2

billion in 1990) would’ have enormous consequences.

Likewise, if climate change were to force substantial

reductions in recreational fishing, this too would harm

many people and businesses. The value of freshwater sport

fishing in the U.S. alone greatly exceeds that of the global

commercial harvest, with direct expenditures in 1991

' Gretchen C. Daily et al., Ecosystem Services: Benefits Supplied

to Human Societies by Natural Ecosystems, 2 Issues in Ecology 1 (1997).

* An extensive body of literature has evolved around the meas-

urement of the value of such “ecosystem services.” See, e.g., James Boyd

& Spencer Banzhaf, Resources for the Future, What Are Ecosystem

Services? The Need for Standardized Environmental Accounting Units

(2006), James Salzman, Creating Markets for Ecosystem Services: Notes

from the Field, 80 N.Y.U. L. Rev. 870, 871-72 (2005); Gretchen C. Daily,

Introduction: What Are Ecosystem Services?, in Nature’s Services:

Societal Dependence on Natural Ecosystems 1, 3-4 (Gretchen C. Daily

ed., 1997).

'** Jay R. Malcolm & Louis F. Pitelka, Pew Ctr. on Global Climate

Change, Ecosystems & Global Climate Change: A Review of the Poten-

tial Impacts on U.S. Terrestrial Ecosystems and Biodiversity 29 (2000).

™ Daily et al., supra, at 4.

29

totaling roughly $16 billion. Once the value of sport

fishing-related jobs is added in, the total increases to $46

billion."

A significant reduction in the ability of the pharma-

ceutical industry to harvest wild plants for research would

also have large negative consequences. Of the top 150

prescription drugs used in the United States, 118 are

derived in whole or in part from plants and other natural

sources. Nine of the top ten drugs are based on natural

plant products. The commercial value of pharmaceuticals

in the developed nations exceeds $40 billion per year.'”

The agricultural sector also has much to lose if cli-

mate change scenarios unfold as projected and wildlife

declines. One third of human food is derived from plants

pollinated by wild pollinators. If birds, bats, butterflies

and other natural pollinators decline due to climate

change, yields of important crops would likewise decline.

In the United States alone, the value to the agricultural

industry of native pollinators sustained by natural habi-

tats is estimated in the billions of dollars per year.””

The agricultural industry is also heavily dependent on

abundant wildlife and healthy ecosystems for pest control.

Roughly 99 percent of potential crop pests are controlled

by natural enemies such as birds and spiders. Wildlife

species save farmers billions of dollars annually by pro-

_ tecting crops and reducing the need for chemical control."

Although the exact economic values of the natural

resources threatened by climate change are difficult to

calculate, there is no question that EPA's inaction on

of

'* Id. at 6. Loss of wild plants would reverberate well beyond the

pharmaceutical industry. Approximately 80 percent of the world’s

population relies on traditional medical systems, which heavily utilize

extracts from wild plants. /d.

"° Id. at 10.

™ Id. at 10-11.

30

climate change directly affects the livelihoods and quality

of life of many people.

C. Abundant Wildlife and Healthy Ecosystems

Are an Essential Part of America’s Heritage -

What is ultimately at stake in this case is America’s

heritage, and whether the legacy of abundant wildlife and

natural beauty that has been bequeathed to the current

generation will be passed to the next. It has been said that

destruction of natural habitats and the consequent loss of

genetic and species diversity is the “folly our descendants

are least likely to forgive us.” If action on climate change

is taken with the urgency that it so obviously deserves, it

may be the action for which our children and grandchil-

dren are most likely to thank us.

CONCLUSION

The judgment of the Court of Appeals should be

reversed.

Respectfully Submitted,

JOHN F. KOSTYACK

NATIONAL WILDLIFE FEDERATION

1400 16th Street, N.W., Suite 501

Washington, D.C. 20036

(202) 797-6800

Counsel of Record for Amici Curiae

™? Edward O. Wilson, Biophilia 121 (1984).

App. 1

APPENDIX

WILDLIFE CONSERVATION INTERESTS

SUBMITTING AMICUS CURIAE BRIEF

ON BEHALF OF PETITIONERS

Sporting and Conservation Organizations

American Whitewater

Arizona Council of Trout Unlimited

Arizona Wildlife Federation

Arkansas Wildlife Federation

Association of Northwest Steelheaders

Center for Environmental Law and Policy

Citizens Progressive Alliance

Colorado Wildlife Federation

Connecticut Forest and Park Association

Connecticut Outdoor and Environmental

Education Association

Conservation Council for Hawaii

Conservation Federation of Missouri

Defenders of Wildlife

Delaware Nature Society

Environment Council of Rhode Island

Environmental League of Massachusetts

Florida Wildlife Federation

Georgia Wildlife Federation

Greenspace — The Cambria Land Trust

Idaho Rivers United

Idaho Wildlife Federation

Indiana Wildlife Federation

Iowa Wildlife Federation

Izaak Walton League

Kansas Wildlife Federation

League of Kentucky Sportsmen

League of Ohio Sportsmen

Louisiana Wildlife Federation

Miami Rod and Reel Club

Michigan United Conservation Clubs

Minnesota Conservation Federation

App. 2

Montana Wildlife Federation

Mountaineers

National Audubon Society

National Wildlife Federation

Natural Heritage Land Trust

Natural Resources Council of Maine

Nebraska Wildlife Federation

Nevada Wildlife Federation

New Mexico Wildlife Federation

North Dakota Wildlife Federation

North Carolina Wildlife Federation

Oklahoma Wildlife Federation

Oregon Anglers Research Society

Oregon Council Trout Unlimited

Ornithological Society of Puerto Rico

Pacific Rivers Council

Planning and Conservation League

Polar Oceans Research Group

Prairie Rivers Network

Riveredge Nature Center and Bird Club

Riverkeepers of Fargo-Moorhead

Sandhills Rod and Gun Club

Save Our Wild Salmon

Save The River |

South Carolina Wildlife Federation

South Dakota Wildlife Federation

Sustainable Obtainable Solutions

Tennessee Wildlife Federation

Texas Committee on Natural Resources

Vermont Natural Resources Council

Virgin Islands Conservation Society

Virginia Conservation Network

Washington Wildlife Federation

West Virginia Wildlife Federation

Wisconsin Wildlife Federation

Wyoming Wildlife Federation

App. 3

Zoos and Aquariums

Association of Zoos and Aquariums

Religious Organizations

Earth Ministry

Wisconsin Council of Churches

Departments of State Government

California Department of Fish and Game

Washington Department of Fish and Wildlife

Professional Societies

American Fisheries Society

Ohio Chapter of American Fisheries Society

The Wildlife Society