August 31, 2020

The Endangered Species Act (ESA) was passed in 1973 in response to growing concerns about biodiversity loss.  The U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) are the primary agencies tasked with carrying out actions under the ESA.  The ESA’s Section 9 prohibits any entity from taking direct actions that would harm an endangered species.  Despite mounting scientific evidence, it is presently difficult to prove a direct causal link between climate change and a specific “harm” to an endangered species.  To date, USFWS has declined to define climate change as a “harm” under Section 9.  The polar bear is one of the few species successfully listed under the ESA primarily due to climate change, listed as “threatened” in 2005. 

Despite these limitations, the ESA is a vital tool for protecting vulnerable species in a warming world.  The Vermont Journal of Environmental Law argues that the best tool the ESA has to fight climate change is critical habitat designation. The Journal reasons that USFWS can consider future migrations when proposing such designations.  Providing species with additional habitat allows them to do what they do best: adapt to a changing world. 

Species are capable of adapting to new challenges.  Scientists studying table corals off American Samoa discovered that corals exposed for a year to higher temperatures experienced a 25% reduction in bleaching die-offs.  Pink salmon populations in Alaska are migrating two weeks earlier than they were four decades ago.  Responding to ocean acidification due to climate change, mussels in the Pacific Northwest have reduced their shell thickness by 32% since the 1970s.  Thinner shells require less calcium, a mineral that will be harder to come by in more acidic oceans.

Additional critical habitat designations will give species a lifeline during the climate crisis.  Unfortunately, in 2018 the Trump administration proposed sweeping changes to the ESA that would significantly weaken it.  The proposed changes would require USFWS and NFMS to consider the economic costs of listing species and would only consider “harms” that are “likely” to occur.  In addition, “threatened” species will not receive any protections.  These proposed changes would leave the USFWS and NFMS mostly ineffectual in responding to negatively impacted species in a rapidly changing world.

Fortunately, these revisions will face numerous legal challenges before they can become law.  In August 2019, Earthjustice filed a lawsuit on behalf of the Center for Biological Diversity, Defenders of Wildlife, Sierra Club, Natural Resources Defense Council, National Parks Conservation Association, WildEarth Guardians, and the Humane Society.  Another lawsuit was initiated by 19 states, the District of Columbia, and New York City. Notably, since the pandemic has created an extensive backlog in the nation’s federal courts, the proposed ESA regulations will remain in legal limbo until the courts issue their decisions. 

While environmental advocates ponder how to build greater support for a strong and effective ESA, economists are providing one possible answer:   place a financial value on restoring species and their habitats. The National Fish and Wildlife Foundation (NFWF) concluded in a 2011 study that U.S. ecosystems provide $1.6 trillion in economic benefits each year.  In addition, Oregon State University (OSU) researchers determined in a 2019 study that increasing annual coho salmon numbers by two-thirds on the Oregon coast would generate as much as $518 million per year for area residents.

It is abundantly clear that those who are concerned about biodiversity loss must remain vigilant and prepared to fight any proposed weakening of the ESA.  For the sake of our delicate biosphere and future generations, we must ensure there will be many more Endangered Species Act success stories to follow those of the bald eagle and humpback whale.

Sources: http://vjel.vermontlaw.edu/; https://smea.uw.edu/; https://www.smithsonianmag.com/; https://news.uchicago.edu/; https://earthjustice.org/ https://www.earthisland.org/;  https://www.farmprogress.com/;  https://time.com/; https://www.biologicaldiversity.org/