Despite the devastating impact climate change will have on biodiversity, most legal scholars and policymakers are skeptical that the flagship statute for protecting biodiversity in the United States, the Endangered Species Act (ESA), should be deployed to regulate greenhouse gas emissions. This skepticism has been driven by the concern that using the ESA to regulate greenhouse gases could lead to administrative issues, legal chaos, and political backlash that might endanger the Act overall.

In this article, I draw on three different elements to argue that the ESA could plausibly be used to regulate greenhouse gases. Specifically, I draw on recent scientific developments that help attribute impacts on biodiversity to climate change; on a common tool in environmental regulation, the general permit; and on key elements of tort law that allow for the division of liability among various actors. Together, these elements mark out a pathway by which the ESA can be used to regulate greenhouse gas emissions, and potentially produce significant funds to pay for the protection of at least some species that are threatened by climate change.

I propose developing a general permit system under the ESA that would regulate large sources of greenhouse gas emissions. This system would charge a fee per unit of greenhouse gases emitted that would compensate for the proportional harm that each unit of emissions causes to species threatened by climate change. In turn, those funds can be used to facilitate conservation efforts for species that are protected under the ESA and threatened by climate change. I provide a thorough examination of how such a system would be consistent with the ESA and the implementing regulations and agency guidance documents, how it would work in practice for individual species or emitters, and how likely such a program would be to withstand judicial review.

The proposal has implications beyond the ESA. It helps identify the ways in which creative regulatory approaches, such as general permits, can facilitate the adaptation of existing environmental laws, like the ESA, to the current-day context of climate change. Given the increasing impacts of climate change and the difficulties of enacting substantial revisions to environmental laws at the federal level, such creativity will be essential for a range of policy areas.