May 9, 2009

More analysis on the ESA and climate change

By Damien M. Schiff Senior Attorney

The Washington Post reports on the Interior Department's decision not to withdraw the polar bear 4(d) rule.  Secretary Salazar is quoted as saying: "The Endangered Species Act is not the appropriate tool for us to deal with what is a global issue."  This is an interesting remark, in that EPA was using a very similar argument to decline to regulate C02 emissions prior to Massachusetts v. EPA, in which the Supreme Court squarely rejected that "global climate change policy is better left to Congress to address through new legislation" rationale.  One wonders whether a Mass. v. EPA is in the offing for the ESA and the Services.

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