Environmental groups announced in June they intend to challenge government efforts to limit unintended economic damage likely to occur from the listing of polar bears as a threatened species under the Endangered Species Act (ESA).
The Center for Biological Diversity (CBD) and other groups have filed notices of intent to sue to block a special rule Interior Secretary Dirk Kempthorne attached to the listing to head off “unintended harm to the society and economy of the United States.” They also intend to challenge modifications to existing ESA regulatory language to prevent the polar bear listing from setting backdoor climate policy outside the normal system of political accountability.
Congressman Don Young warned that court action attacking provisions to limit the collateral economic damage would threaten domestic energy development, ultimately restrict supply and sharply increase energy costs.
“This is the beginning of an endless series of court challenges and appeals that the national environmental organizations have been planning in their goal of using the polar bear issue for much larger purposes and goals,” he said.
Senator Ted Stevens said the issue going forward would be whether the courts accept Kempthorne’s special rule, modifications and interpretations. He warned that environmental groups will exploit the listing to harass petroleum and other fossil fuel development.
“These people know what they’re doing,” Stevens said. “They’ve got another tool to stay in court,” he said. “I don’t see them trying to hold up traffic in Los Angeles,” he added. “They are putting up roadblocks to prevent future supplies of energy in the United States.”
Senator Lisa Murkowski called the decision to list premature because climate change models vary so much. She said the decision “opens a Pandora’s Box that the administration will now be unable to close.”
In announcing his decision to list the polar bear, Kempthorne noted legal standards under the ESA compelled him to list the bear as threatened, but he emphasized bear, given computer models indicated its summer sea ice habitat would likely vanish over the next 50 years.
“Any real solution requires action by all major economies for it to be effective,” Kempthorne said. “That is why I am taking administrative and regulatory action to make certain the ESA isn’t abused to make global warming policies.”
4(d) Rule and the Marine
Mammal Protection Act
In making his decision to list, Kempthorne announced he was using the authority provided in Section 4(d) of the ESA to develop a rule that states that if an activity (such as oil and gas development and subsistence) is permissible under the stricter standards imposed by the Marine Mammal Protection Act (MMPA), it is also permissible under the ESA with respect to polar bears. Polar bears are protected under the MMPA.
The rule, effective immediately, will ensure the protection of the bear while allowing the
U.S. to develop its natural resources in the arctic region in an environmentally sound way, the Secretary said.
ESA not intended to regulate global climate change
In announcing his decision to list, Kempthorne reiterated President Bush’s statement earlier this spring that the ESA was never intended to regulate global climate change. “Listing the polar bear as threatened can reduce avoidable losses of polar bears, but it should not open the door to use of the ESA to regulate greenhouse gas emissions from automobiles, power plants and other sources,” he said. “That would be a wholly inappropriate use of the ESA law. The ESA is not the right tool to set U.S. climate policy.”
There is a right way and wrong way to approach reducing greenhouse gas emissions, Kempthorne said. “The American people deserve an honest assessment of the costs, benefits and feasibility of any proposed solution. Discussions with such far-reaching impacts should not be left to unelected regulators and judges but should be debated openly and made by the elected representative of the people they affect.”
In addition to the special rule and modifications to existing ESA regulatory language to prevent abuse of the listing to erect backdoor climate policy, Kempthorne instructed the Fish and Wildlife Service to issue guidance to staff that the best scientific data available today cannot make a casual connection between harm to a listed species or their habitats and greenhouse gas emissions from a specific facility, resource development project or government action. Kempthorne said all of these measures are intended to head off misuse of the ESA to regulate climate change.
In making the decision to list, Kempthorne emphasized that neither oil and gas development nor subsistence activity are the reasons the bear was listed. In fact, since 1993, when the U.S. Fish and Wildlife Service began issuing disturbance permits for petroleum exploration in the arctic, there has not been a single polar bear or walrus death attributed to oil and gas development.
Despite Kempthorne’s finding that energy development was not a reason for listing the polar bear, Marilyn Crockett, Executive Director of the Alaska Oil and Gas Association, is concerned the decision will result in extended court battles over future oil and gas exploration in Alaska’s arctic. “We now have a species listed as threatened which is both healthy in size and population; the real risk is litigation that will follow,” Crockett said.
The Alaska Wilderness League and other environmental groups have already called for the suspension of all oil and gas activities in the Chukchi and Beaufort seas. The Chukchi is believed to be America’s most prolific unexplored offshore oil and gas basin.
“If polar bears and Pacific walrus are to survive in the face of global warming, we simply cannot allow oil development in the Chukchi Sea,” said Brendan Cummings, oceans program director at the CBD.
“Lawsuits have been and will continue to be filed opposing individual operations, lease sales and permits, and that will have a significant impact on business up here,” said Crockett. “In the end, significant energy policies and projects will be decided by the courts.”
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