Polar bear "special rule" remains; trend toward climate change "regulation by litigation" likely to follow suit
"The Endangered Species Act is not the proper tool to deal with a global issue - global warming," said Secretary of the Interior Ken Salazar on May 8, in announcing that the administration would retain the Bush era “special rule” under section 4(d) of the ESA, aimed at protecting the polar bear. Despite Salazar’s proclamation, however, environmental advocates are increasingly predicating climate change-based lawsuits on the ESA. Lawsuits seeking protection for specific animals, such as the Pika and the Alaskan Kittlitz’s Murrelet, focus on the indirect effects of global warming on those animals. Other lawsuits use the ESA as a platform to advocate against climate change on a much more general level. The ESA lawsuits are part of a larger trend toward “regulation by litigation,” in which environmental advocates have sought to regulate greenhouse gas emissions through lawsuits based on a host of US laws, such as the Energy Policy and Conservation Act, the Clean Air Act, the Energy Policy Act of 1992, the Administrative Procedure Act, the National Environmental Policy Act (“NEPA”), the Federal Land Policy and Management Act (“FLPMA”), and the Mineral Leasing Act (“MLA”).
The latest round of lawsuits may stem from the continuation of the polar bear exception, also known as the “Alaska Gap.” While the special rule aims to protect the polar bear, it applies only to activities in Alaska, and exempts the “incidental” effects of activities outside the state. Salazar had authority to revoke the rule until May 10, under the Omnibus Appropriations Act of 2009 . Salazar’s announcement came despite a large campaign against the rule. More than 1300 scientists, 53 law professors, 8 senators, U.S. representatives, California legislators, and Conservation organizations wrote letters to Salazar beseeching him to abandon the special rule. Now that he refused to use his authority to revoke the rule, environmentalists such as the Center for Biological Diversity have hailed Mr. Salazar’s decision “a gift to big oil.”
There has been considerable debate over the actual effects of global warming on the polar bear. Notably, the polar bears are already protected by protected by Title V of the Marine Mammal Protection Act, and international treaties such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora. The budget for Fiscal Year 2010 increases the funding for polar bear conservation efforts.
In a Missouri town hall meeting in late April, President Obama declared that the way to save the earth and the polar bears was to change things in “a smart, gradual way.” However gradual the Administration’s plan is, it is certain that the courts will be dealing with many attempts at regulation by litigation in the meantime.
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.
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.
