# Amicus Curiae Brief — Massachusetts v. EPA

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0245%3A41

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 549 U.S. 497

## Text

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.

“ 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0245%3A41. Public record. Not legal advice.