Unoccupied habitat is habitat that is not currently occupied by a listed species. To deal with the anticipated effects from climate change, the Service and NOAA Fisheries are proposing changes to their regulations that would vastly expand their authority to designate unoccupied areas as critical habitat. By changing a few words in a regulation, the Services would fundamentally alter the role that the designation of unoccupied areas has historically played in the ESA regulatory scheme Whatever one may think of the Services’ concern for the effects that climate change may have on critical habitat, their proposed changes to 50 CFR § 424.12 to deal with those effects exceed their authority under the ESA for the following reasons […]