Public Employees for Environmental Responsibility has released a leaked memo from David Bernhardt, Interior Department Solicitor, setting forth his view as to why greenhouse gas (GHG) emissions from individual projects cannot have a significant enough effect on any ESA-listed species or its critical habitat to trigger Section 7 consultation. The memo's reasoning is basically a fleshing out of the position the Service took in its threatened listing for the polar bear, and to that extent does not represent anything truly new. Nevertheless, the memo is important in that it refers to recent statements from the United States Geological Survey and the EPA for the point that the effects on climate change caused by individual project emissions are de minimis. Here is a choice memo excerpt:
Given the nature of the complex and independent processes active in the atmosphere and the ocean acting on GHGs, the causal link simply cannot currently be made between emissions from a proposed action and specific effects on a listed species or its critical habitat. Specifically, science cannot say that a tiny incremental global temperature rise that might be produced by an action under consideration would manifest itself in the location of a listed species or its habitat. Similarly, any observed climate change effect on a member of a particular listed species or its critical habitat cannot be attributed to the emissions from any particular source. Rather it would be the consequence of the collective greenhouse gas accumulation from natural sources and world-wide anthropogenically produced GHG emissions since at least the beginning of the industrial revolution.
The memo nicely demonstrates that the ESA is not the appropriate statutory vehicle for addressing the effects of climate change,