Kevin Cooke

October 31, 2008

On October 29, 2008 the National Marine Fisheries Service (NMFS) in conjunction with the National Oceanic Atmospheric Administration (NOAA) announced a final rule protecting threatened Elkhorn and Staghorn corals. The corals, once abundant reef-building corals throughout Florida and the Caribbean, are currently experiencing declines of up to 90% in some areas due to bleaching. Bleaching is a stress response from coral caused by sediment runoff and elevated sea temperatures, and is a major problem for reefs worldwide. As corals become stressed their natural response is to expel their zooxantheallae (symbiotic algae that gives them color), and this response can be fatal if stress continues and the zooxantheallae is unable to return.

This new regulation, which is a mandatory response to the 2006 listing of Elkhorn and Staghorn corals as threatened under the Endangered Species Act (ESA), affords these two species full protection under section 9(a)(1) of the ESA. Section 9(a)(1) broadly prohibits the "taking" of species, and quite literally this encompasses such activities as collecting, gathering or capturing, but also includes all activities that "harm" listed species. Importantly, since the definition of "harm" has been subject to litigation before, the new regulation clearly establishes that "harm," a subset of "take," encompasses "significant habitat modification or degradation that actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns."

Previously the NMFS and NOAA have acknowledged that one of the most prevalent threats to coral mortality of these two species is "climate variability and change." Worried that their activities could result in a violation under section 9 of the ESA other federal agencies submitted their concerns during the public comment period of this new regulation. In direct response the NMFS expressly stated that since the ESA is already subject to interagency coordination requirements, Federal agencies must consult with the NMFS if their actions may affect listed corals. The NMFS went on to state that this coordination requirement includes both direct and indirect effects, where indirect effects include all those that are reasonably certain to occur. Therefore, given the latest scientific evidence linking coral bleaching to increasing carbon dioxide levels and climate change, and the express acknowledgment of the threat from the NMFS, this new regulation in addition to protecting coral may offer a relatively low hurdle for those wishing to challenge agency emission actions in the future. Although it is uncertain if such a challenge will occur and if whether a successful challenge could result in increased CO2 regulation, this new coral protection certainly presents a creative argument under the ESA.

Sources:

Endangered and Threatened Species; Conservation of Threatened Elkhorn and Staghorn Corals, 73 Fed. Reg. 64,264 (Oct. 29, 2008) (to be codified at 50 C.F.R. § 223.208).

Endangered and Threatened Species: Final Listing Determinations for Elkhorn

Coral and Staghorn Coral, 71 Fed. Reg. 26,852 (May 9, 2006)

Endangered Species Act, 16 U.S.C. § 1538(a)(1) (West 2008).

Endangered Species Act, 16 U.S.C. § 1532(19) (West 2008).

Press Release, The Center for Biological Diversity, New Federal Rule Provides Greater Protection From Human Threats to Two Species of Coral (Oct. 29, 2008) available at http://www.enn.com/press_releases/2698.