Antarctic emperor penguins—which don’t exist in the U.S.—could get federal Endangered Species Act protections because climate change is imperiling the flightless birds.
The U.S. Fish and Wildlife Service is proposing to list the bird as threatened under an ESA public inspection notice published Tuesday.
The proposal is the Biden administration’s response to a court settlement agreement reached between the Center for Biological Diversity and the Interior Department under the Trump administration in 2020. Interior agreed to review the status of the emperor penguin and determine whether it warrants protection under the ESA by July 29.
“These penguins are hard hit by the climate crisis, and the U.S. government is finally recognizing that threat,” Sarah Uhlemann, international program director at the Center for Biological Diversity, said in a statement.
The Biden administration’s determination that penguin deserves protection sends a message globally about its stance on climate change ahead of November’s United Nations international climate negotiations in Scotland, said Brooke Marcus, an attorney at Nossaman LLP in Austin.
Countries at the summit are set to present their latest round of greenhouse gas emissions cuts under the 2015 Paris climate accord.
“This listing signals a return to listing species where climate change is the primary threat to the species,” Marcus said.
Previous international listings of species have been challenged in court, with varying results, she said.
“During the Obama administration, we saw several listings of species based primarily on climate change threats to the species’ ice habitat,” Marcus said in an email. “Many of those listings were litigated (ringed seal, bearded seal, polar bear, wolverine) with varying results at the district and appellate level.”
The Fish and Wildlife Service said Tuesday regulating the penguins and other species threatened by human-caused global warming will help recover them globally.
“Climate change, a priority challenge for this administration, impacts a variety of species throughout the world,” Martha Williams, Fish and Wildife’s principal deputy director, said in a statement. “The decisions made by policymakers today and during the next few decades will determine the fate of the emperor penguin.”
The proposal says that human greenhouse gas emissions driving climate change pose the biggest threat to emperor penguins because global warming is rapidly destabilizing Antarctic sea ice and threatening the birds with catastrophic ice-shelf collapse.
If approved, the listing would have a direct impact on international trade because under the ESA, the U.S. could block any international commerce that involves the harassment or killing of the emperor penguin.
Two other laws passed in 1978 and 1984 help protect Antarctic wildlife and prohibit harvesting animals there. But existing protections for the penguin aren’t enough, the service said.
“None of the existing regulatory mechanisms addresses the primary and unique nature of the threat of climate change on emperor penguins,” Fish and Wildlife said in the notice.
The Center for Biological Diversity in 2011 filed a legal petition for the Fish and Wildlife Service to list the emperor penguin under the ESA. The Obama administration issued a preliminary finding in 2014 that the penguin may need to be listed, but the agency took no further action.
The center sued Interior in 2019 to compel it to make a final determination about whether the penguin deserved protection.