The U.S. Supreme Court’s opinion in Weyerhaeuser Co. v. U.S. Fish & Wildlife Service raises important questions about the scope of the Endangered Species Act’s (ESA’s) protections for critical habitat. Foremost among them is a question one might think was long settled: what is “habitat”? In a short ruling, the Weyerhaeuser Court opined that “critical habitat” must first be “habitat,” but it did not attempt to define exactly what habitat is or how much deference the U.S. Fish and Wildlife Service should get on what is both a biological and policy question. The Court also sidestepped whether currently unoccupied “habitat” must in fact be “habitable” at the time of designation as critical habitat. The task of defining “habitat” now falls to the ESA’s implementing agencies or to the U.S. Congress.  This Comment proposes to define habitat in a way that is consistent with the intent of the ESA, reflects the best available science, is operationally workable, and also broad enough to account for species’ needs.

This Article, adapted from Chapter 16 of What Can Animal Law Learn From Environmental Law?, 2d Edition (ELI Press, forthcoming 2020), explores existing and potential wildlife conservation policies that could play a vital role in mitigating global climate change. It describes how climate change is impacting wildlife and biodiversity around the globe and reviews the history and current state of U.S. policy, including how the federal government currently manages climate change issues under the ESA. It then proposes ways that the ESA and other wildlife conservation policies can mitigate climate change as natural climate solutions. It analyzes new wildlife conservation policies for their potential to mitigate climate change, and concludes that these can provide much-needed protection for species and biodiversity, while also serving as a valuable and meaningful tool to combat climate change.