September 1, 2008

New Polar Bear Lawsuit

By New Polar Bear Lawsuit

Last week, the American Petroleum Institute and allied organizations filed suit in federal court in DC challenging a small portion of the Fish & Wildlife Service's Section 4(d) rule for the polar bear (issued the same day as the threatened listing).  Under Section 4(d) of the ESA, 16 U.S.C. s. 1533(d), the Service is authorized to regulate the taking of threatened species; in essence, through the 4(d) mechanism, the Service can significantly ease the limitations on development activity that otherwise could incur "take" liability under Section 9 of the Act (for threatened species, only).  The polar bear 4(d) rule basically states that no proposed project that would increase greenhouse gas emissions can, for that reason alone, trigger consulation requirements under Section 7 or otherwise incur take liability under Section 9.  The Service's reasoning is that the causal connection between an incremental increase in greenhouse gases and negative effects on the polar bear is simply too tenuous.  Notwithstanding that causal analysis, the Service's 4(d) rule specifically excepted projects occuring in the State of Alaska.  It is that exemption from the exemption, which the API lawsuit terms "the Alaska Gap," that is the subject of the suit.  (N.B.  The suit is brought as a pure Administrative Procedure Act action, meaning that (1) no notice to the Service was required, and (2) attorney's fees will be harder to win).

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