The pricelessness of biodiversity: using the Endangered Species Act to help combat extinction and climate change.

• Author: Falberg, Alisha
• Position: IV. The Endangered Species Act B. Amending the Act 2. Critical Habitats through VI. Conclusion, with footnotes, p. 179-214 - The California-Quebec Adventure: Linking Cap and Trade as a Path to Global Climate Action

2. Critical Habitats

   Protecting habitats--where biodiversity exists--is critical. The destruction and degradation of habitats is the most pervasive threat to biodiversity. (259) Habitat destruction contributes to the endangerment of approximately eighty-five percent of species. (260) Stating that habitat destruction is one of the horsemen of the environmental apocalypse, (261) E.O. Wilson, a top authority on biodiversity science, argues, "the only way to save wild species is to maintain them in their natural habitats." (262) Wilson goes on to assert:

   [C]onservation experts have shifted their focus ... from individual plant and animal groups (species) to entire threatened habitats, whose destruction would cause the extinction of many species ... The logic of experts is simple: by concentrating conservation efforts on such areas, we can save the largest amount of biodiversity at the lowest economic cost. (263) Currently, critical habitat is determined on a species-by-species basis, only becoming designated if a species has been listed and if its critical habitat can readily be identified. (264) Not all listed species have designated critical habitats. (265) Therefore, many of the above recommendations, such as expanding listing to ecosystems, would also apply to the designation of critical habitats. However, since habitat is imperative to the conservation of species, the ESA should be amended to make sure that every listed species has at least some part of its range designated as a critical habitat. The amendment would be added to section 1533(b)(2). The section would read (proposed amendment in bold):

   (2) The Secretary shall designate critical habitat ... on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary shall designate at least some part of the range of every endangered species and threatened species listed under subsection (a)(1) of this section. The Secretary may exclude any area from critical habitat if he determines that the benefit of such an exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless the exclusion would result in no area being designated as critical habitat or unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned. (266)

   This guarantee would remove some of the discretion FWS currently has in deciding not to designate critical habitats for species, but would allow for the cost/benefit analysis to remain in place. This amendment would also guarantee that each listed species has some form of protected area.

   One major issue with the designation of critical habitat as it intersects with threats from climate change is that species are going to move and migrate as the global climate changes. This is called species range shift: as the climate changes, species tend to move toward the poles. (267) Lawler, along with other biological ecologists, have tried to model the set of climates species are able to exist in today and then, using projected future climate data, have tried to figure out where suitable climate space will be for those species in the future. (268) Lawler and his colleagues used that data to create maps for many species showing where the species exist today, where they will move to in the future, and where they will not be able to survive in the future. (269)

   Lawler then studied how species would migrate and what paths they might take to get to the newly climatically suitable habitat. (270) Using the Human Influence Index, which essentially measures humanity's impact on land, Lawler looked for routes that would provide paths to newly suitable climates, as well as avoiding areas of high human land use. (271) Lawler then calculated the movement of animals to determine pathways that species would likely take. (272) He did this with ten different climate models using about 3,000 species, creating a summary map of movements and pathways of migration. (273) This map showed how much movement, the direction of movement, and the agreement in the direction of movement (i.e. how many species of the 3,000 were all moving in the same direction) species may take. (274) The map defined primary corridors of species movement based on human impact and climate change and assumes that species will take the least cost and "smartest" path through the landscape. (275) For example, there was a potentially large corridor of movement in the Appalachian Mountains. (276)

   These maps can identify conservation areas that would promote the movement of species in a changing climate. (277) The ESA could use this information to protect the major migratory paths and corridors that species will take as the climate changes through designating them as a critical habitat. The amendment would be added to section 1533(b). The section would read (proposed amendment in bold):

   (3) The Secretary shall designate critical habitat corridors, and make revisions thereto, under subsection (a)(3) of this section on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular pathway as a critical habitat corridor. A critical habitat corridor shall only be designated if it can be determined to be a major pathway through which multiple species, affected by climate change, will use to migrate to a more suitable climate for that species based on the changes to their formerly suitable climate. The Secretary may perform the same balancing test used in subsection (b)(2) of this section when designating any area as a critical habitat corridor. (278)

   This amendment would allow for these "smart" paths to remain protected to facilitate easier movement for species as they adapt to climate change. Since Lawler took into account human impact when creating these paths, the paths he determined would allow for species to remain, as much as possible, in wild areas. Therefore, designating such corridors as critical would protect the paths from any further human impacts, allowing for species to move as uninhibited as possible. (279)

   Such changes to the designation of critical habitat would better protect species from the effects of climate change. It would provide them with areas to live and to move without much inhibition and better facilitate their transition as the climate shifts allowing species to better adapt.

3. Recovery and Monitoring

   Recovery and monitoring is arguably the most important section of the ESA; if the listed species are not monitored and do not recover to the point of self-sustainability, there is no point in placing them under protection. However, the ESA has arguably not been very successful in its goal of listed species recovery. While it is true that listed species have a much better chance of recovery, "only one percent of the species under its protection have recovered and been delisted." (280) This is not a criticism of the ESA, as most species listed are on the road to recovery, but rather an argument that the Act is not working fast enough. Recovery plans and monitoring have the potential to save more listed species quicker.

   Scientifically, recovery is "the active attempt to return an ecological system ... to some previous condition following a period of change or disruption." (281) As currently written, the ESA requires "recovery plans" to be prepared and implemented for listed species. (282) However, the ESA does not define "recovery;" (283) it only states the purpose, implementation process, and requirements for recovery plans. (284) This section providing for recovery plans ([section] 1533(f)) is critical because its intention to increase the population of listed species differs from other functions of the ESA, such as designating critical habitat, that simply aim to prevent further decline. (285) The goal of this section is to create plans that would restore species populations to viable, self-sustaining levels so that they can be delisted. (286) The ESA can state this more clearly. The amendment would be added to section 1533(f)(1). The section would read (proposed amendment in bold):

   (f) Recovery Plans

   (1) The Secretary shall develop and implement plans (hereinafter in this subsection referred to as "recovery plans") for the conservation and survival of endangered species and threatened species listed pursuant to this section, unless he finds that such a plan will not promote the conservation of the species. Recovery shall be defined as the active attempt to return a listed species to a population size that is viable and self-sustaining so that measure provided pursuant to this chapter are no longer necessary and the species may be removed, in accordance with the provisions of this section, from wither of the lists published under subsection (c) of this section. The Secretary, in developing and implementing recovery plans, shall, to the maximum extent practicable ... (287)

   This amendment would provide a more concrete, scientific definition of recovery and state specifically the goal of recovery plans under the ESA.

   Recovery plans are also vague on measurable criteria; i.e. what constitutes a sizable enough population to justify removal of the species from the list. The ESA merely states that "objective, measurable criteria" shall be used to make that determination. (288) However, the recovery of species depends on identifying specific threats and removing them. For some species, a single, relatively tractable, factor may contribute heavily to the risk of extinction, making recovery feasible in a relatively short time. (289) For other species facing numerous or poorly understood threats, there are even...