Climate Change and the Endangered Species Act: The Difficulty of Proving Causation

Gerhart, Matthew
February 2009
Ecology Law Quarterly;2009, Vol. 36 Issue 1, p167
Academic Journal
It is likely that environmental groups will view the Endangered Species Act as a legal tool for forcing action on climate change. This Comment examines the standard for proving causation under section 7 and section 9 of the ESA, and analyzes potential barriers to proving that an entity has violated section 7 or section 9 by contributing to climatic changes that harm a listed species. Plaintiffs face two hurdles under section 7. Given the current models of climate change, defendants have ample evidence to argue that the present concentration of greenhouse gases is such that climate change will occur for many years. As a result, defendants can argue that past actions, not present actions, cause climate change. Furthermore, a defendant can argue that the emissions from a proposed action do not contribute significantly to climate change, and thus do not result in jeopardy. Proving causation under section 9 is also problematic. First, the sheer number of sources of greenhouse gas emissions poses a problem because of the traditional requirement that an entity be liable for harm only if its conduct is a substantial factor in bringing about the harm. Further, the persistence of greenhouse gas emissions in the atmosphere makes it even more difficult to establish that any given emitter's emissions are a substantial factor in causing climate change harm. Third, it is nearly impossible to trace the lifecycle of greenhouse gas emissions from a particular source, which renders it virtually impossible to trace particular emissions to particular climate change harms. Despite these obstacles, and in the aftermath of Massachusetts v. EPA, a plaintiff may still be able to make a reasonable argument that an action causes harm to a listed species. The question remains, however�how much greenhouse gas emissions are enough to satisfy a court's legal standard for causation under the ESA?


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