New tool to fight global warming: Endangered Species Act?

Environmentalists may have gained a powerful new legal weapon to fight global warming: the Endangered Species Act.

That's the fallout some expect from a settlement last week between environmentalists and the National Marine Fisheries Service. The government agency agreed to protect the "critical habitat" of elkhorn and staghorn coral, the first species to be recognized as threatened by global warming.

By protecting habitat, not just species, the federal government could be in a position to fight any threats to that habitat, including possibly, global warming, some environmentalists say. While no one expects the US to stop, say, a coal-fired power plant in the Midwest to save Florida coral, the settlement does expand the leverage of the 1973 law that protects species from extinction.

"We think this victory on coral critical habitat actually moves the entire Endangered Species Act [ESA] onto a firm legal foundation for challenging global-warming pollution," says Kieran Suckling, policy director of the Center for Biological Diversity, an environmental group based in Tucson, Ariz., that filed both coral suits.

Indeed, the coral-protection victory may be just the beginning of a push to use the ESA to fight global warming, he and other environmentalists suggest.

The pair of coral species are struggling to survive because Florida's and the Caribbean's waters have become warmer and more acidic. Many scientists attribute the change to global warming.

Protected coral gets habitat safeguards

The elkhorn and staghorn coral won protected status under the ESA in May 2006. But it took a second legal battle to win a preservation of the corals' "critical habitat," part of last week's settlement between environmentalists and the US fisheries service.

The act's leverage will grow, environmentalists say, as climate change becomes recognized as a factor in species' decline. The number of species-recovery plans that cite global warming as a damaging factor has gone from zero as recently as 1990 to 141 today – with most of the growth since 2000.

While that's still just 9 percent of the 1,494 species listed at one time or another, the increase suggests that a large group of species still awaiting listing will have global warming cited as a major cause in their decline. The polar bear, 12 species of penguins, and the Kittlitz's Murrelet, an Alaskan bird that nests on the edges of glaciers, are all candidates, Mr. Suckling says.

Specific effects of warming speculative

Right now, any bid to fight the construction of a power plant by arguing that emissions might harm a species would probably be thrown out of court, because such climate-change effects remain speculative, Mr. Suckling concedes.

But in the next few years, if evidence of the threat of global warming on endangered species grows, so could the legal argument that the ESA be considered when a power plant or other carbon-intensive project is proposed, he adds.

Others are far less sure about that. Even some environmentalists are skeptical.

It is, for instance, unlikely that any judge will halt a power plant project just because its emissions contribute to a huge pool of global emissions that collectively harm coral, says Michael Bean, senior attorney at Environmental Defense, a Washington-based environmental group.

"The list of endangered species will in the future include many species threatened by global warming," he says. "But I'm skeptical that the [ESA] itself will be the source of any new restrictions on greenhouse-gas emissions. I think those will come from new legislation."

While winning a place on the endangered species list is always a big step – it's only the first. Habitat loss is the primary cause of species loss.

But only about 38 percent of the 1,367 species on the federal endangered species list actually have the much tougher protection that mandates critical habitat protection. Under the law, no area designated as critical habitat can be destroyed or adversely modified.

Those legal protections have played a major role in limiting development in key areas of the country. Critical-habitat designations covering 80 million acres along the West Coast have sharply reduced fishing in the breeding grounds of the Steller Sea Lion, a move many credit for the recent rebound in the population.

First listed as "threatened" in May 2006, the two coral species have declined 80 to 98 percent across their range. This spring a study found that 10 percent of the Caribbean's 62 reef building corals were threatened, including elkhorn and staghorn corals that used to be prominent.

Scientists studying the decline of coral that used to be the dominant reef-builders off the Florida coast are cheering the new settlement. They say they hope the critical-habitat designation will restrict access to the last remaining coral stands – and help win the legal fight on global warming.

"It's pretty exciting to find that a lowly marine invertebrate might actually someday be the legal catalyst for rulings against greenhouse-gas emissions," says Andrew Baker, a University of Miami marine biologist specializing on climate change impact on coral. "It's like getting Al Capone for tax evasion."