Regulation Database – National Oceanic and Atmospheric Administration (NOAA)

Some of the key reports issued by NOAA on climate change include:

NOAA also publishes monthly and annual reports on observed climate trends, which are available on its State of the Climate website.

  • The 2016 Annual Global Report shows that 2016 was the hottest year on record. This is the third consecutive year a new global annual temperature record has been set.

Deregulatory action: On August 21, 2017, the Trump Administration announced that it would not renew the charter of the federal advisory panel for the National Climate Assessment (NCA). The National Oceanic and Atmospheric Administration (NOAA) established the 15-person Advisory Committee for the Sustained National Climate Assessment in 2015 to “advise on the engagement of stakeholders and on sustained assessment activities and the quadrennial NCA report.” The Committee’s charter expired on August 20, 2017.

Plans and Guidance

* The ocean acidification action plans were created in response to the Federal Ocean Acidification and Monitoring Act of 2009, which requires that NOAA “have an active monitoring and research program in regards to ocean acidification.”

Climate-Smart Sanctuaries Initiative

In 2010, NOAA launched its Climate-Smart Sanctuaries Initiative to help the National Marine Sanctuary System address and adapt to climate change. It includes a process for developing a climate change site scenario and climate action plan for each sanctuary, as well as outlining the requirements for obtaining certification as a “climate-smart” sanctuary. In order for a sanctuary to receive certification, it must go through a peer-review process to be completed by at least three objective experts who rank the sanctuary’s efforts in a number of categories including but not limited to waste management, energy efficiency, adaptation measures, and outreach. The initiative is being piloted at Gulf of the Farallones, Fagatele Bay, and Olympic Coast National Marine Sanctuaries.

Rule Designating Research Area Within National Marine Sanctuary Boundaries

On October 14th, 2011 NOAA created a research area within Gray’s Reef National Marine Sanctuary (GRNMS) off the coast of Georgia. In compliance with the National Marine Sanctuaries Act, the final rule designates a portion of the sanctuary for conducting controlled scientific studies without human activities or interference. The purpose of the research area is to create a space for researchers to examine the effects of climate change, ocean acidification and other human-induced stressors on the sanctuary, and provide early warning services for losses in ecosystem integrity. Climate change effects can be hard to determine due to the “overwhelming effects of fishing,” making a research area necessary to carry out this work successfully and accurately. The research area occupies 8.27 square miles of the southern portion of the sanctuary.

Expansion of Fagatele Bay National Marine Sanctuary

On July 26th, 2012 NOAA expanded the Fagatele Bay National Marine Sanctuary through the addition of five geographical areas in compliance with The National Marine Sanctuaries Act (NMSA). The small sanctuary, located off of the coast of American Samoa, provides refuge for many native Indo-Pacific species and coral reefs and has been negatively impacted by commercial fishing and coral bleaching caused by anthropogenic climate change. The newly included areas, chosen based on their biological value, are: Fagalua/Fogama’a, Swains Island, Ta’u, Aunu’u and Muliāva. The regulation expands the sanctuary from .25 square miles to approximately 13,581 square miles, and attempts to make the ecosystem more resilient to climate change effects including increased natural disasters, acidification, and temperature increases.

Amendment to Critical Habitat Designation Regulations

On Feb. 11, 2016, FWS and the National Marine Fisheries Service (NMFS) finalized a rule amending parts of their regulations on the designation of critical habitat for endangered species. One important component of the rule are revisions to the regulatory provisions describing when FWS and NMFS can designate critical habitat outside of the outside the range occupied at the time of listing. The Endangered Species Act (ESA) provides that such areas should be included in the critical habitat designation if they are “essential for the conservation of the species.”

The previous regulations provided that FWS and NMFS could designate areas outside of the “geographical area presently occupied by a species’’ only when ‘‘a designation limited to its present range would be inadequate to ensure the conservation of the species.’’  The revised regulations remove this language, and instead instruct the agencies to consider “the life history, status, and conservation needs of the species based on the best available scientific data” when determining whether there are unoccupied areas that should be included in the critical habitat designation. As noted in the final rule, this gives the agencies more flexibility to account for factors such as climate change when setting habitat boundaries.

Deregulatory Action:

In August 2019 NOAA and the FWS amended the ESA regulations to reinstate the restriction that areas outside of the geographical area currently occupied by a species could be designated as critical habitat only when a designation limited to its present range "would be inadequate to ensure the conservation of the species.’’  NOAA and FWS further amended the regulations to prohibit the Secretary of Interior from designating critical habitat within an unoccupied area unless there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more physical or biological features essential to the conservation of the species.

The revisions also alter the threshold for designating a species as "threatened."  When considering whether to list a species as threatened under the ESA, NOAA and the FWS analyze whether that species is likely to become endangered within the “foreseeable future.” As amended, the ESA regulations now define “foreseeable future” to extend “only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely.” 

Litigation:

On August 21, 2019, seven organizations filed a lawsuit in the federal district court for the Northern District of California challenging amendments to the ESA regulations. Center for Biological Diversity v. Bernhardt (N.D. Cal. 3:19-cv-05206).

Bearded and Arctic Ring Seals

Bearded Seal (NMFS, 2012): NMFS listed two subspecies of the bearded seal as threatened, based largely on the impact of climate change on their sea ice habitat. In reaching this conclusion, NMFS considered climate impacts through 2100. A district court in Alaska overturned the listing decision, holding that forecasting more than 50 years into the future was too remote and speculative to support the determination that these subspecies were in danger of becoming extinct. But the Ninth Circuit Court of Appeals reversed that decision and reinstated the listing decision in 2016. Alaska Oil & Gas Ass’n v. Pritzker (9th Cir. 2016).

Artic Ringed Seal (NMFS, 2012): NMFS recognized that habitat loss caused by climate change is the primary long-term threat to the continued survival of the Arctic Ringed Seal, and this was the predominant factor underpinning its decision to list three subspecies as threatened and one as endangered. This decision was also overturned by the district court in Alaska for the same reason noted above. The Ninth Circuit Court of Appeals subsequently overturned the district court decision and upheld the ringed seal listing rule for the same reasons it had upheld the bearded seal listing rule. 

Coral Species

Multi-Species Listing Decision (NMFS, 2014): The impacts of climate change on coral habitat and health in the Atlantic and Caribbean was one of the primary reasons for listing twenty coral species as threatened.

Elkhorn Coral and Staghorn Coral Recovery Plan (NMFS, 2015): The recovery plan notes that rising ocean temperatures and acidification will affect the threatened coral species, and while emission reductions are needed for a long-term solution, geo-engineering solutions to increase surface ocean alkalinity and reduce thermal stress may provide a short-term solution to protect the coral. It identifies potential geo-engineering measures, including: shading of strategic, high-value populations of reefs, and pumping of cooler subsurface or chilled waters onto reef habitats.

Green Turtle

Listing Decision (NMFS, 2016): NMFS cited climate change as a threat to green sea turtles and thus one factor contributing to its decision to list eleven population segments of these turtles as threatened or endangered. Specific impacts included: temperature changes and sea level rise are likely to change ocean currents and the movements of hatchlings, juveniles, and adults; ocean acidification is likely to affect the forage-base of green turtles; and sea level rise will reduce the availability and increase erosion rates of nesting beaches.