San Diego Journal of Climate & Energy Law
Abstract
This Comment will argue for particular interpretations of “significant portion of its range” and “foreseeable future” under the ESA to prioritize species preservation in the face of climate change.
The analysis begins by describing key aspects of the ESA, including its historical background, its conceptual definitions, its prescribed method for determining endangered species and threatened species, its listing process, and critical habitat requirements. This Comment then discusses climate change as a source of threat and endangerment “within the foreseeable future,” and whether acts worsening climate change can constitute an unlawful taking. Next, this Comment considers how the Supreme Court’s decision to overturn Chevron deference may impact judicial interpretation of “significant portion of its range.” This Comment will use the 2023 regulation as a case study, focusing on the regulation’s significant portion of its range analysis for the northern distinct population segment of the southern subspecies of scarlet macaw.
Comparing the listing distinctions, an endangered species is deemed “in danger of extinction throughout all or a significant portion of its range,” while a threatened species is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Assessing the threat of climate change for both threatened and endangered species will be vital for ensuring the species’ protection. Climate change puts key habitat elements in jeopardy that species rely on for survival, such as breeding grounds, nesting grounds, and food resources. Thus, protecting these fundamental elements within a species’ habitat is essential.
First, given that Loper Bright overruled the long-standing Chevron deference, this Comment proposes that a court confronted with ambiguity should first employ independent judgment that broadens the interpretation of the “foreseeable future” language under the ESA. Courts should use the ESA as a vehicle for change to address the threats of climate change to imperiled species. For example, the courts could analyze activities contributing to habitat destruction and fragmentation, such as logging and agricultural conversion, and track the resulting harm to species using technological tools like durable satellite telemetry collars. Although parrots are difficult to capture and have been found to destroy small trackers, durable satellite telemetry collars have withstood the destructive capabilities of the scarlet macaw.
Second, courts should construe the significance question under the significant portion of its range (SPR) analysis with greater flexibility. Courts should consider the species’ adaptive response to threats of fragmentation, isolation, and habitat loss to assess whether the population contributes to the viability of the species. Given the threat that climate change poses to resource availability, courts should expand their analysis beyond the species’ currently populated range. For example, courts can consider nearby regions that may provide essential resources, such as foraging, nesting, and breeding habitat necessary for the species’ viability. Scientists have confirmed that the scarlet macaw migrates through large regions during the non-breeding season, moving between both protected and non-protected areas. Expanded protection is necessary to adequately safeguard this species.
Recommended Citation
Kathryn Wood,
Soaring to New Heights Through the Lens of the Scarlet Macaw–A Post-Loper Bright Interpretation of the Endangered Species Act’s “Significant Portion of Its Range” for a Climate-Driven “Foreseeable Future”,
17
San Diego J. Climate & Energy L.
149
(2026)
Available at:
https://digital.sandiego.edu/jcel/vol17/iss0/6