Heidi Guenther

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The United States is facing a critical moment in human history and the choices we make will determine the future we will collectively inhabit. Societally, we are still grappling with whether the science of climate change is real and whether humans are the cause of it.[1] In the meantime, species are dying off in all ecosystems at alarming levels.[2] The increase in overall extinction has drastically accelerated since the dawn of the Industrial Revolution and the increase of human-produced greenhouse gases.[3] While we are making steps in the right direction to reduce greenhouse gas production, it is not quickly enough to prevent a warming planet and the ensuing effects on all species.[4] Currently, the way we conserve species focuses on populations that are already threatened, whose numbers are dangerously close to extinction. [5]We should be taking more proactive steps to assist species that are still abundant, so they are capable of adapting through the Anthropocene.[6]

Preserving species that currently have large genetic variance in their populations will allow them to evolve with the coming Anthropogenic changes to habitat.[7] We must actively work to prevent genetic bottlenecking—as genetic variability is critical to species adaptation and climate change mitigation.[8] Moving this concept further, the use of phylogenetic data on speciation can serve to identify which species have the ability to evolve through the Anthropocene and which habitats should be the focus of conservation.[9] Congress should implement legal frameworks and protections to work alongside best available scientific data to create a proactive phylogenetic approach to conservation. It is upon us as policymakers, legislators, and legal advocates to make this happen.

This Note asserts that the current legal protections the United States affords non-human species are insufficient to preserve species diversity as we progress through the Anthropocene. Conservation law should incorporate phylogenetics as a metric for preventative species population degradation. Part I addresses fundamental biological principles and the current scientific data regarding phylogenetics and species biodiversity to set the stage as to why species preservation matters to human survival in the Anthropocene. Part II addresses the current structure of the federal Endangered Species Act (ESA), and its successes and failures as it relates to phylogenetics. After discussing the inadequacies of law and policy currently in place under the ESA, this Note suggests measures to address and improve regulations that agencies can incorporate into as a more approachable and boundaryless solution. In conclusion, this Note will reiterate those solutions proposed in my suggested, more comprehensive act—The Phylogenetic Preservation Act—while emphasizing why this measure is critical to all species adaptation through the Anthropocene.

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[1] Anthony Leiserowitz et al., Climate Change in the American Mind: April 2019, 4–10 (Yale Univ. & George Mason Univ. 2019).

[2] U.N. Report, Nature’s Dangerous Decline ‘Unprecedented’; Species Extinction Rates ‘Accelerating’, U.N. Sustainable Dev. Goals (May 6, 2019), https://www.un.org/sustainabledevelopment/blog/2019/05/nature-decline-unprecedented-report/#:~:text=The%20Report%20finds%20that%20around,20%25%2C%20mostly%20since%201900 [hereinafter U.N. Report]; IPBES, The Global Assessment Rep. on Biodiversity & Ecosystem Serv. 26 (2019) [hereinafter IPBES].

[3] See Rebecca Lindsey, Climate Change: Atmospheric Carbon Dioxide, NOAA (Aug. 14, 2020), https://www.climate.gov/news-features/understanding-climate/climate-change-atmospheric-carbon-dioxide (graphically displaying the increase in atmospheric carbon dioxide since 1750); Bjorn Carey, The Industrial Revolution of the Oceans Will Imperil Wildlife, Says Stanford Scientist, Stanford News (Jan. 16, 2015), https://news.stanford.edu/2015/01/16/oceans-extinction-cycle-011615/#:~:text=Many%20scientists%20have%20identified%20the,other%20factors%20killed%20other%20animals (noting that scientists have determined the Industrial Revolution as the tipping point of species extinction rates).

[4] See U.N. Report, supra note 2 (finding that of the five primary factors driving global species loss, climate change due to greenhouse gas emissions is on track to be the largest contributor).

[5] See Lilian Sayuri Ouchi-Melo et al., Integrating Phylogenetic and Functional Biodiversity Facets to Guide Conservation: A Case Study Using Anurans in a Global Biodiversity Hotspot, 27 Biodiversity & Conservation 3247, 3257–60 (2018) [hereinafter Ouchi-Melo et al.] (pointing out the negative implications of focusing conservation solely on individual species and those in biodiverse hotspots).

[6] National Geographic defines Anthropocene as “the most recent period in Earth’s history when human activity started to have a significant impact on the planet’s climate and ecosystems.” Anthropocene, Nat’l Geographic, https://www.nationalgeographic.org/encyclopedia/anthropocene/ (last visited May 31, 2021).

[7] See Ary A. Hoffmann & Carla M. Srgo, Climate Change and Evolutionary Adaptation, 470 Nature 479, 480–82 (2011) [hereinafter Hoffmann] (discussing how genetic variation, climate change pressures, and adaptation relate to trait selection in species ability to evolve with the rate of climate change).

[8] See Genetic Bottleneck, Nat’l Geographic, https://www.nationalgeographic.org/media/genetic-bottleneck/ (last updated Mar. 8, 2019) [hereinafter Genetic Bottleneck] (“A genetic bottleneck occurs when a population is greatly reduced in size, limiting the genetic diversity of the species.”); Martine Maron et al., Climate-Induced Resource Bottlenecks Exacerbate Species Vulnerability: A Review, 21 Diversity & Distrib. 731, 731, 738 (2015) [hereinafter Maron et al.] (noting that climate change and human-induced stressors exasperate resource and genetic bottlenecking).

[9] Phylogenetics refers to “the ancestral relatedness of groups of organisms, whether alive or extinct” and DNA sequencing can determine the phylogenetics of species. Omar Sultan Haque, Phylogenetics, Britannica, https://www.britannica.com/science/phylogenetics (last visited May 31, 2021); Encyclopedia Britannica defines Speciation is defined as “[t]he formation of new and distinct species in the course of evolution.” John L. Gittleman, Speciation, Britannica, https://www.britannica.com/science/speciation (last visited May 31, 2021); See Rebecca J. Safran & Patrick Nosil, Speciation: The Origin of New Species, 3 Nature Educ. Knowledge 10, 17 (2012) (breaking down the different ways in which speciation occurs).

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