Bush Administration Gets Fitted For New Suit

Here in the 600 block of California Street in San Francisco's Financial District, our offices share floors with conservation neighbors the Center for Biological Diversity.

I've been a huge fan of the Center even before we were neighbors. Their mission is to use science, legal expertise, and media attention to protect endangered species and ecosystems. While they utilize a diverse arsenal of approaches, you may know them as the "environmental lawsuit people." And perhaps rightly so. A snapshot of their personnel shows a brain trust of talented, aggressive attorneys who have chosen to eschew partnerships, fat salaries, and exorbitant compensation packages at private law firms in favor of fighting for a healthy planet. As a result, the Center boasts an impressive record of 93 percent favorable outcomes on their lawsuits.

But a recent announcement by the Center of their intention to file a suit against the Bush administration for failure to protect endangered coral reefs might, at first blush, leave you scratching your head. On November 26, 2008, NOAA announced that it will designate almost 3,000 square miles of coral reef area off the coasts of Florida, Puerto Rico, and the U.S. Virgin Islands as critical habitat under the Endangered Species Act. The new rule, published in the Federal Register, was required by a court-approved settlement of a 2007 lawsuit brought by the Center for Biological Diversity.

Shouldn't the Center be celebrating? Have they gone sue crazy?

Well, take a closer look. The Endangered Species Act requires that when a species is listed under the Act, the federal government must protect habitat that is essential to its survival and recovery. Thanks to efforts by the Center for Biological Diversity, Elkhorn coral (Acropora palmata) and Staghorn coral (Acropora cervicornis) were listed as threatened under the Endangered Species Act in 2006. In the new critical-habitat rule, the federal government designated important areas to be protected for the corals, but created a giant loophole that disregards the primary threats to coral habitat: elevated seawater temperatures and ocean acidification.

Miyoko Sakashita, an attorney with the Center for Biological Diversity, explains that, "On one hand, the law required the federal government to identify areas to protect for the threatened corals. On the other hand, the administration skirted the real threats to coral habitat, global warming and ocean acidification, by inserting language into the rule that carves out an exception for those threats. It is not only irrational, but it is illegal under the Endangered Species Act.”

You've heard me go on at length before about once magestic stands of Caribbean Elkhorn and Staghorn corals that have been reduced to shadows of their former glory due to a combination of diseases and elevated sea surface temperatures. But I've also outlined the emerging issue of ocean acidification, a concomitant byproduct of global warming caused by the ocean’s absorption of carbon dioxide that impairs the ability of corals to build their protective skeletons. Some scientists have predicted that most of the world’s coral reefs will disappear by midcentury due to global warming and ocean acidification under a business-as-usual emissions scenario.

What the Center's intended suit seeks from the Administration is language that sets substantial reductions in carbon dioxide pollution, the ultimate cause behind coral habitat destruction. The Center for Biological Diversity filed an official 60-day notice letter to the Bush administration on November 25 outlining their intent to sue over the Administration’s inadequate critical-habitat rule.