Endangered Species Law & Policy

The National Marine Fisheries Service ("NMFS") has issued a final determination (PDF) listing the southern Distinct Population Segment of Pacific eulachon (commonly referred to as "pacific smelt") as a threatened species under the federal Endangered Species Act.  Because the pacific smelt has only been listed as a "threatened species," the listing does not result in an immediate prohibition on pacific smelt harvesting.  NMFS can, however, extend such a prohibition via regulation.  And in the final determination NMFS stated that in the future it will be ...

On February 10, 2010, the National Marine Fisheries Service (NMFS) announced its determination that a Center for Biological Diversity (CBD) petition (PDF 6 MB) to list 83 species of stony coral as threatened or endangered under the Endangered Species Act presents substantial information indicating that [listing] might be warranted for 82 of the 83 subject species.  See 90-Day Finding (PDF).

If a threatened listing is warranted, NMFS may use its authority under Section 4(d) of the Endangered Species Act to impose regulatory requirements necessary and advisable to provide for the conservation of the species, including the prohibition of take of any such species without an incidental take permit. 

If any of the species are listed as endangered, they automatically benefit from the Act’s most potent protections: Under Section 7, federal agencies must insure that actions they fund, authorize, or carry out are not likely to jeopardize the species or result in the destruction or adverse modification of its designated critical habitat.  Under Section 9, persons are prohibited from taking or harming any endangered coral without first obtaining an incidental take statement under section 7 or an incidental take permit under Section 10.  Furthermore, citizens may bring suit in federal court to enforce the provisions of the Endangered Species Act.

Thus, listing of coral could enable environmental groups to sue major emitters of greenhouse gases (GHGs) under the theory that their emissions cause the unpermitted take of, or harm to species imperiled by climate change.