June 9, 2008

recent 60 day notifications

By recent 60 day notifications

Citizen suits under the ESA must be preceded by a 60 day notice of the ESA violation to the alleged violator.  See 16 U.S.C. § 1540(g)(2)(A)(i).

The Center for Biological Diversity has recently made two such notifications to Secretary of the Interior Dirk Kempthorne.  In one notice, CBD alleges that the Secretary has failed to adequately respond to CBD's February petition to list the Pacific walrus as an endangered species because of threats posed to the walrus by oil development and global warming.  No doubt Kemptorne's decision last month to list the polar as threatened due to global warming encouraged this notification, at least somewhat.

Speaking of the polar bear, CBD has used the listing of this fairly well-off species in its second 60 day notification.  In this notice, CBD argues that given its threatened status under the ESA, Kempthorne and Interior are failing to do enough to protect polar bears from oil development in their habitat in the Beaufort and Chukchi seas off Alaska.  With gas prices soaring and Americans increasing desire for domestic energy sources, a statement made by CBD fellow environmental group in this case speaks for itself.  According to Whit Sheard, Alaska program director of Pacific Environment, "Things are happening so fast in the Artic that we need to take a timeout from offshore oil development in the region."

Lastly, the State of Alaska has also sent Secretary Kempthorne a 60 day notice of its intent to sue. (Download state_of_ak_esa_60_day_notice.pdf.)  Alaska claims that the listing of the polar bear under the ESA is itself illegal because

[t]here is no provision in the ESA for conjecture about regulatory mechanisms to address anthropegenic causes of climate change.  The best available scientific and commercial data fails to demonstrate a causal connection to or the relative contribution of such sources, along with natural events, to the range-wide loss of summer sea ice habitat within the foreseeable future and does not demonstrate how a regulation affecting various incremental levels of greenhouse gas emissions would have any impact on the range-wide loss of summer sea ice habitat within the foreseeable future.  The finding regarding inadequacy of existing regulatory mechanisms violates the ESA because it is not based on best available "scientific and commercial data."

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