Kempthorne: Whistling Past the Graveyard


Henry Payne is spot on when he asks, “If [Interior Secretary Dirk] Kempthorne just ruled that global warming is an imminent danger to the polar bear’s habitat, then, how long will it be before greens take the next tactical step and sue to limit industry from producing carbon dioxide?”

Kempthorne’s claim that listing the polar bear as threatened by global warming “should not open the door to use the ESA [Endangered Species Act] to regulate greenhouse gas emissions from automobiles, power plants, and other sources” is whistling past the graveyard. Regulating greenhouse gas emissions was the main objective of the greens’ ESA litigation from day one.

The Center for Biological Diversity was the lead group petitioning the Fish & Wildlife Service (FWS) and suing the Department of Interior to list the polar bear as a threatened species. Along with Greenpeace and Natural Resources Defense Council, CBD filed the petition on “Kyoto Day” — February 16, 2005, the day the Kyoto Protocol went into effect. In the fall 2007 issue of Natural Resources & Environment, CBD’s Senior Attorney (Brendan Cummings) and Climate Program Director (Kassie Siegel) plainly state their intent to use the ESA to suppress U.S. fossil energy use.

Consider this excerpt:

In the seminal ESA case, Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978), the Supreme Court held that the ESA’s unequivocal mandate that federal agencies “insure” that their actions do not “jeopardize” any species protected by the statute meant that a multimillion dollar dam project already near completion could not proceed because its completion threatened the existence of the snail darter, a small endemic fish of no know economic value. . . . In the nearly three decades since TVA was decided, courts enforcing the ESA have halted such activities as logging to protect threatened owls, commercial fishing and military activities to protect marine mammals, oil and gas development to protect wolves and grizzly bears, pesticide authorizations to protect imperiled salmon, and numerous other habitat-damaging activities that threatened a particular protected species. Whether GHG emissions can be halted to protect polar bears will be a test of the statute’s continuing relevance in the twenty-first century. [Emphasis added]

Ominously, Cummings and Siegel don’t say that the continuing relevance of the ESA depends on its ability to reduce or limit CO2 emissions, but to “halt” them.

The authors go on to discuss Sections 7 and 9 of the ESA, and how those provisions can be used to stop fossil fuel production and combustion. Section 7 directs all federal agencies to consult with the FWS to ensure that “all actions authorized, funded, or carried out by such agencies are ‘not likely to jeopardize the continued existence’ or ‘result in the destruction or adverse modification of habitat’ of any listed species.” This means that “if the project [authorized, funded, or carried out by an agency] is determined to jeopardize a listed species or adversely modify its critical habitat, the statute can trigger modification or cancellation of the project so as to avoid such impacts.”

Quoting from the Code of Federal Regulations, Cummings and Siegel explain that “jeopardize” means “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers or distribution of that species.” Hence, if an action “appreciably” contributes to the GHG emissions believed to cause global warming, “that action could then be found to jeopardize a listed species.”

So which federal actions appreciably contribute to GHG emissions and might be controlled or stopped under the ESA? The setting of fuel economy standards and the granting of offshore oil and gas leases are obvious candidates, but there are many others:

The GHG emissions from numerous other actions present in the approval of new coal-fired power plants, oil shale leasing programs, limestone mines for cement manufacturing, and dozens perhaps hundreds of other projects are individually and cumulatively having an appreciable effect on the atmosphere. These are all agency “actions” as defined by the ESA, which “may affect” listed species, and therefore trigger the consultation requirements of Section 7.

Cummings and Siegel conclude: “There is no reason GHG emissions, which jeopardize polar bears, should be treated any differently than pesticides that harm salmon or logging that harms owls.”

Section 9 of the ESA prohibits “any person,” including private individuals and corporations, from “taking” any endangered or threatened species. “Take” has several meanings, including “harass,” “kill,” and “harm.” “Harm” includes “significant habitat modification or degradation where it . . . injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.” The clear implication here is that ESA litigants may not only be able to block agency actions that authorize or fund GHG-emitting activities, but also shut down the operations of companies that produce or combust fossil fuels.

Finally, Cummings and Siegel argue that, “The ESA requires that a recovery plan for the polar bear be prepared and implemented. There is no hope for recovery, much less survival, of the polar bear absent substantial reductions in GHG emissions. Any legally adequate recovery plan must therefore include mandates to reduce such emissions.”

So there you have it, straight from the source. The objective of listing the polar is to set the predicate for “mandates” to reduce carbon dioxide emissions. Litigation to stop corporations and other private entities from emitting GHGs is on the agenda, although initially litigators will probably target federal agencies to block “hundreds” of projects that “individually and cumulatively” release “appreciable” amounts of CO2 into the atmosphere.


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