February 21, 2013

Polar bear rule issued

By Damien M. Schiff Senior Attorney

Earlier this week, the United States Fish and Wildlife Service reissued a rule under Section 4(d) of the Endangered Species Act, allowing the “take” of polar bear.  The District of Columbia federal district court had overturned a prior version on the ground that the Service had failed to comply with the National Environmental Policy Act in promulgating the rule.  With the issuance of the new rule this week, the Service also finalized an environmental assessment under NEPA, in compliance with the district court’s judgment.

The new rule uses the Service authority to exempt certain activities from the ESA’s prohibitions on the “take” of listed species, when those species are protected as “threatened.”  The rule exempts from ESA “take” regulation those activities that are otherwise authorized by the Marine Mammal Protection Act or the Convention on International Trade in Endangered Species of Wild Fauna and Flora.  It also exempts all “incidental” take of polar bears arising from lawful activities within the United States but outside the polar bear’s current range.

That last exemption is evidently designed to insulate greenhouse gas emitters in the lower 48 states from ESA liability, on the theory that such emissions contribute to global warming, which threatens the polar bear’s habitat and exacerbates its decline.

Interestingly, the Service’s preface to the rule emphasizes repeatedly that the rule does not affect any otherwise applicable obligation to engage in Section 7 consultation.  In other words, notwithstanding this rule, an energy company or other relatively large emitter of greenhouse gases in the lower 48  may find itself compelled to consult with the Service and mitigate for the “impact” of its emissions if the activity requires a federal permit (e.g., under the Clean Air Act) to operate.

And this may come about even if the permitting authority does not believe that the proposed emissions will have any impact on the polar bear or its habitat.  The ESA’s citizen suit provision authorizes private parties to sue any person, including federal agencies, for alleged violations of the Act.  One could imagine an environmental group suing EPA (or state officials operating under the aegis of the Clean Air Act) to require consultation with the Service before the issuance of any permit.

To be sure, the Service’s new Section 4(d) rule will make a Section 7 claim harder to make.  Formal consultation is not required if the proposed action is not likely to adversely affect a species or its critical habitat.  Per the rule, no greenhouse gas emission from the lower 48 can “take” a polar bear; thus, it’s difficult to imagine how such activity could trigger formal consultation on an “adversely affect any listed species” basis.  But, it is at least plausible that an environmental group could argue, and that a court could accept, the argument that the emission activity is nevertheless likely “to adversely affect . . . critical habitat” of the polar bear, through increased temperatures leading to increased sea ice melt, etc., etc.

That being said, I believe that the causal connection between one emitter’s gases and the global warming problem as a whole is untenable, much as are the public nuisance tort claims based on greenhouse gas emissions.  But the absence of convincing causation evidence hasn’t stopped the latter cases from being brought, and I suspect that it won’t prevent similarly crafted Section 7 cases from being brought either.

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