Industry lawsuit challenges three-word "Alaska Gap" of Department of Interior rule
Regional Causation Will Be a Key Question
On the same day that it determined under the Endangered Species Act that polar bears were threatened, the Interior Department published an Interim Final Special Rule which in essence provides that, “except in Alaska,” greenhouse gas emitting activities are exempt from the requirement that a Fish and Wildlife Service (FWS) permit be obtained where there may be an “incidental taking" of the threatened species. Five industry groups – American Petroleum Institute, U.S. Chamber of Commerce, National Mining Association and the National Association of Manufacturers – just filed a lawsuit (American Petroleum Institute, et al. v. Kempthorne, et al.) in the United District Court for the District of Columbia challenging that three word exception.
While these groups generally support the interim rule, they challenge the logic behind the Alaska exception given EPA (and other) conclusions that regional emissions do not directly cause regional climate impacts. An excerpt from the complaint (paragraphs 5 and 6) summarizes the lawsuit:
Under the ESA and its accompanying regulations, the “threatened species” designation presumptively triggers Section 9 of the ESA, which would require an FWS permit for activities that constitute an “incidental taking” of the designated species. FWS, however, also determined that climate change is a worldwide phenomenon, resulting from the combination of greenhouse gas emissions across the globe. Accordingly, FWS determined that neither climate change, nor any effect of climate change, can be traced to particular activities in particular locations. On that basis, FWS accompanied its Listing Rule with the 4(d) Rule, which generally exempts greenhouse gas emitting activities from Section 9 requirements to which they might otherwise be subject. . . .
But in sharp contradiction with FWS’s own determination that climate-change-based effects on polar bears cannot be traced to emission activities in any particular location, the 4(d) Rule excludes Alaska from the Section 9 exemption. The Alaska Gap thus exposed Alaska operations to increased permitting burdens and/or the risk of enforcement by Government authorities and citizen suits – risks that operations elsewhere in the United Sates do not face and that are contrary to FWS’s own determinations about the nature and effects of global climate change
The lawsuit will likely draw on support from FWS’s own words, including statements like the following contained in a May 14, 2008 FWS memorandum regarding Expectations for Consultations that Would Emit Greenhouse Gases:
GHG that are projected to be emitted from a facility would not, in and of themselves trigger section 7 consultation for a particular action unless it is established that the emissions from the proposed action cause an indirect effect to listed species or critical habitat. To constitute an indirect effect, the impact to the species must be later in time, must be caused by the proposed action, and must be reasonably certain to occur. The best scientific data available today do not allow us . . . to draw a causal connection between GHG emissions from a given facility and effects posed to listed species or their habitats, nor are there sufficient data to establish that such impacts are reasonably certain to occur.
Unlike public nuisance cases filed to date, where early dismissals on political question and standing grounds prevented the lawsuits from reaching the critical, and complex, issues relating to causation, this litigation should put the question of causation directly into play, requiring an analysis of whether greenhouse gas emissions can be isolated and evaluated on a such a localized basis.
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