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.
Environmental group sues Bureau of Land Management for failing to consider greenhouse gas emissions in granting oil and gas leases
The Western Environmental Law Center (“WELC”) has filed suit in New Mexico federal court against the Bureau of Land Management (“BLM”), alleging that the agency’s 2008 grant of 92 oil and gas leases in New Mexico violated federal law by failing to address greenhouse gas emissions. The complaint also alleges that the Bureau failed to adopt policies designed to make drilling more efficient. This lawsuit, along with a similar complaint filed by WELC in Montana in December, is among the first to use greenhouse gas emissions as a basis for challenging oil and gas leases in the west. Named plaintiffs in the suit are Amigos Bravos, the Natural Resources Defense Council (NRDC), and members of the Oil and Gas Accountability Project.
WELC argues in its complaint that the agency’s grants of the leases were improper under the Federal Land Policy and Management Act (“FLPMA”), the Mineral Leasing Act (“MLA”), the National Environmental Policy Act (“NEPA”) and the Department of the Interior’s Secretarial Order 3226 (January 19, 2001). The citizen group plaintiffs base their standing to sue on the alleged impairment of their use and enjoyment of lands affected by the leases.
The complaint alleges that oil and gas exploration and operations release greenhouse gases on many fronts, including vented gases from machines, gasoline processing, and coal beds, gases released during transport and refining of oil and gas, and heat and electricity generation. The complaint suggests that gas released from these sources could cause the greenhouse gas concentration in New Mexico to reach a tipping point, a point at which global warming would start to accelerate at a rate beyond human control.
The WELC complaint seeks both declaratory and injunctive relief. It asks that the district court suspend, enjoin or void the leases until the Bureau of Land Management achieves full compliance with the applicable federal law. The complaint also asks that fees and costs be awarded to the plaintiffs.
