Climate Law Update: Climate Change & Sustainable Energy News : Thelen Reid Law Firm : Renewable Energy, Construction, Project Finance Lawyers & Attorneys

In an e-mail to Climate Law Update, Shell Exploration and Production Company spokesman Curtis Smith said:

"Shell has already conducted safe and environmentally responsible seismic programs in the Beaufort and Chukchi seas during 2006 and 2007. We will continue to do so in 2008 while meeting or exceeding all regulatory requirements."

He added that the prior explorations "were successfully completed without any recordable safety incidents or known negative impact to the environment or local communities." The company spent $2.1 billion earlier this year acquiring oil and gas leases in the Chukchi Sea. 

A BP spokesman, Steve Rinehart, who noted that the company was not active in the Chukchi Sea,  told Climate Law Update:

"BP does have a well-considered seismic survey planned for this summer. It's a survey that will be conducted in a way, and is designed in a way to not harm or conflict with fish, sea birds, marine mammals or other wildlife."

He also said that the timing of the explorations means they would not occur during whale migrations, and would take place at a time of lessened ice, meaning fewer bears should be present. 

Although the latest lawsuit has little explicitly to do with global warming, that issue was clearly not far from the minds of some of the protagonists. Brendan Cummings, a California attorney for the Center for Biological Diversity, and one of the plaintiffs in the litigation, said in a statement issued by the groups (see text here):

"All of the marine mammals of the Arctic are under severe threat from global warming and should not be subjected to further harm. Yet the planned seismic surveys would subject literally tens of thousands of these already imperiled animals to dangerously loud sounds."

Cummings' group, along with the Natural Resources Defense Council, another plaintiff in the latest litigation, recently won a judge's ruling ordering federal wildlife officials to quickly decide whether to grant Endangered Species Act protection to the polar bear because of threats posed by climate change. Such a move also could require heightened environmental scrutiny for oil exploration operations, the groups contend (see Climate Law Update stories here, here, here and here).

The center is also pressing federal officials to extend the protections of the endangered species law to four seal species that inhabit the Chukchi and Beaufort seas, both as a result of global warming and oil development (see Climate Law Update story here).

Shell and BP are also among the defendants in a separate lawsuit filed in federal court in San Francisco alleging global warming damage to Kivalina, an Alaskan village (see lawsuit here).

 (Photo: Minerals Management Service)

Kassie Siegel, a California attorney and climate program director for the Center for Biological Diversity, one of the plaintiffs in the lawsuit prodding the government to act, in a written statement (see text here) called the decision "a huge victory" for the Arctic-dwelling predator. By the judge's deadline, Siegel said, the bear "should receive the protections it deserves under the Endangered Species Act, which is the first step toward saving the polar bear and the entire Arctic ecosystem from global warming."

Activists have long said that they see the listing of such animals as the polar bear -- which would be the first mammal given an endangered species designation because of climate-related reasons -- as bringing the law into the broader struggle against global warming. It could also have implications for more local concerns, such as oil exploration in the Arctic (see previous Climate Law Update story here).

Andrew Wetzler, director of the Natural Resources Defense Council's endangered species project, said in the same statement that the federal court decision was a lifeline for the "incredible animal." He added that the endangered species law "requires the decision to be based solely on science, and the science is absolutely unambiguous that the polar bear deserves protection." The NRDC, along with Greenpeace, is also a plaintiff in the case.

Meanwhile, U.S. Sen. Barbara Boxer, no friend of the Bush administration, also took the opportunity to weigh in (see statement here). Boxer, a California Democrat, who chairs the Senate Environment and Public Works Committee and who has repeatedly clashed with the executive branch's environmental officials, had this to say:

"Interior Secretary Kempthorne, like [Environmental Protection Agency] Administrator Stephen Johnson, has been stonewalling our committee, and I am very pleased that the court has ordered the Interior Department to stop stalling and finalize its decision regarding polar bears. These magnificent creatures are in peril, and this administration has no right to walk away from protecting them."

(Photo: U.S. Department of Interior)

The new lawsuit painted the bears’ situation as dire:

"Polar bear populations are already declining due to global warming. Individual polar bears have drowned, starved, and even resorted to cannibalism as global warming transforms the Arctic. The U.S. Geological Service (“USGS”) projects that two thirds of the world’s polar bears will be extinct by 2050 if “business as usual,” emissions trends continue, and that the world’s remaining bears will face an over 40 percent risk of extinction by century’s end. The USGS projections may be overly optimistic, as they are based on modeling results of sea-ice decline that have underestimated the ice loss to date."

It also noted that while the bears’ global population is estimated at between 20,000 and 25,000 animals, numbers have been dwindling in certain regions, including the western Hudson Bay region and in the southern Beaufort Sea.

Endangered Species Act listing would trigger a number of protections for the animals. A big impact could come from a section of the law that requires other federal agencies to consult with the Interior Department when they are considering authorizing activities that might jeopardize protected species or adversely affect their habitat. In the case of an animal listed because of global warming, that could mean decisions as disparate as those relating to offshore oil drilling, highway construction, coal-fired power plants, federal fuel economy standards and industrial air pollution permits could be opened to new scrutiny, no matter where they are located, according to Siegel. The agencies would have to look at ways of reducing the harm to the animals, she said.

“Any federal agency that is authorizing a major source of greenhouse gas emissions would have to analyze the cumulative effects of those greenhouse gases on polar bears,” Siegel said. However, she said the law would give some discretion to the agencies to determine which projects would qualify.

The Natural Resources Defense Council and Greenpeace also are plaintiffs in the lawsuit. In the groups’ statement announcing the court action a Greenpeace official said the federal government recently had initiated lease sales to drill for oil in the Chukchi Sea, a part of the Arctic Ocean he called "pristine polar bear habitat." The official, Kert Davies, called on the Bush administration to cancel the sales and “immediately implement a plan for deep cuts in U.S. global warming pollution.”

Siegel, in an interview with Climate Law Update, said listing a species under the law would not provide the entire solution for global warming. However, she said: “We need to be analyzing solutions in all possible contexts.”

Determining such issues as when the inter-agency reviews would have to take place and in what manner they would be carried out would be “some of the bigger questions that have to be answered” if the bear is listed, said Wildlife Service spokeswoman Valerie Fellows.

Some environmental organizations, Felllows said, “have been very vocal about their intention to use [a polar bear listing] as a regulatory tool to control greenhouse gases.”

She characterized other considerations under the law, such as whether an animal is “taken” (i.e., harmed), in much narrower terms, and requiring a high level of scientific proof to demonstrate. The science, she said, "would have to be so evolved that you would have to point to the car that would be related to the animal that died."

Fellows would not speculate on when a final decision on the bear would be issued. In January, Wildlife Service noted it was studying the issue in light of information on sea ice trends and bear populations coming from another federal agency, the U.S. Geological Survey.    

 In 2006, the federal government’s National Marine Fisheries Service listed two species of coral for protection under the endangered species law, partly for reasons related to global warming. Environmentalists have also sued to push similar listings for numerous species of penguins (see news release and lawsuit here). In addition, they want to see climate-related protections for the Pacific walrus and, in California, the  mountain-dwelling American pika (see press statement here), a small mammal.

Recently a lawsuit was filed in federal court in San Francisco against big energy companies for their alleged roles in causing global warming damage to Kivalina, a native Alaskan fishing village.

(Polar bear mother and cubs: Wikipedia photograph)