Endangered Species Act becoming a key battleground in climate change regulation and litigation
The newly-filed American Petroleum Institute, et al. v. Kempthorne, et al. lawsuit, as well as recently proposed regulatory changes to the Endangered Species Act (“ESA”) confirm that the ESA is becoming a key battleground over the use of existing legislative and regulatory tools to atttempt to regulate greenhouse gases.
The Bush Administration recently proposed changes to the ESA to prevent it from being used as a "back door" mechanism to address climate change issues. Under the current ESA regulations, federal agencies that propose to take actions that “may affect” protected species are required to "consult" with the U.S. Fish & Wildlife Service or the National Oceanic and Atmospheric Administration (depending on the species involved) to evaluate the proposed action. This “consultation” may involve either a formal written request or it may be a meeting between the agencies. The proposed changes to ESA regulations would allow federal agencies to skip this consultation step if the agency decides itself that the action at issue would not have an adverse effect on the protected species. For example, the proposal states:
These regulations would reinforce the [Fish and Wildlife] Services’ current view that there is no requirement to consult on greenhouse gas (GHG) emissions’ contribution to global warming and its associated impacts on listed species (e.g., polar bears).
The proposed rule appears to reflect the government's position that it is not possible to draw a causal link between greenhouse gas emissions and impacts on endangered species, and therefore, they want to prevent an agency from being required to consult on action that "may affect" a protected species as a result of the action's emissions of greenhouse gases. The proposal also adds timelines to limit the duration of informal consultation and lend greater certainty to the process. It would allow action agencies to terminate consultation if the Fish and Wildlife Service, for example, has not acted on its request for concurrence within 60 days. While extensions may be requested, if there is no written determination from the Service within the applicable time frame, the agency taking the action may terminate the consultation. The proposed regulatory changes have further galvanized criticism of current U.S. climate policy and will no doubt garner significant public comments during the 30-day comment period. If it is finalized, expect this regulation to be the subject of aggressive litigation challenges.
“White House Proposes to Butcher Endangered Species Act (Center for Biological Diversity, August 14, 2008); “Endangered Species: In More Danger (Time Magazine, August 12, 2008)”.
For more on this topic, see our previous post on the “Alaska Gap” lawsuit.
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