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)

Wilken rejected a request by the government that would have pushed the effect of any final decision to protect the animals under the law until about Aug. 1. The government had wanted to wait to issue any decision until June 30 and then to allow another 30 days before it actually took effect. At the same time, federal officials had agreed that the environmental group's motion requiring action should be granted -- but disagreed on the timing.

The judge, who sits in Oakland, Calif., however, didn't buy any of the arguments asking for more time:

"Other than the general complexity of finalizing the rule, defendants offer no specific
facts that would justify the existing delay, much less further delay. To allow defendants more time would violate the mandated listing deadlines under the [Endangered Species Act] and congressional intent that time is of the essence in listing threatened species."  

She also found that the endangered species law would be much more protective of the bears than another federal statute, the Marine Mammal Protection Act, because the former law also covers the bears' habitat. Federal officials had argued that the marine mammal law would give the bears adequate coverage while a decision was pending on whether to extend endangered species protection to the bear.

Wilken also noted a rule had been proposed to exempt oil industry operations in part of the bears' habitat, in the Chukchi Sea region of the Arctic Ocean, from the marine mammal law's prohibition against harming protected animals. 

In addition to the Center for Biological Diversity, other plaintiffs in the case include the Natural Resources Defense Council and Greenpeace.

(Photo: U.S. Fish and Wildlife Service)

Wilken is presiding over a lawsuit brought by environmental groups who contended that the government, as a result of prior litigation, was supposed to have formally issued its decision by Jan. 9 (see text of lawsuit here; see Climate Law Update story here; ). More recently, the environmentalists filed a summary judgment motion asking Wilken to order officials to act within a week of the next hearing on the matter, now scheduled for May 8 (see motion here).

In court filings Thursday, Justice Department lawyers representing Interior argued that Wilken should grant the plaintiff’s motion – but “adopt the [wildlife] service’s proposed deadline of June 30, 2008 for submission of the final listing determination for the polar bear to the Federal Register.” The government acknowledged that as far back as December 2006 officials had proposed listing the bear as threatened. Additional studies were ordered, however, and a draft decision is now in the hands of Lyle Laverty, the department’s assistant secretary for fish and wildlife and parks. Laverty “anticipates a final listing decision will be completed” by the June date, the department's lawyers wrote.

They also asked the court to allow the decision to go into effect 30 days after its publishing in the register, meaning no protections would kick in until about Aug. 1. The filing noted that 670,000 public comments have been received on the issue.

“The assistant secretary must ensure that the final determination has addressed the public comments, is supported by the best available scientific and commercial data, and is legally sufficient,” the government attorneys wrote. Additionally, they argued that a 30-day waiting period “will have a negligible effect” on the bear, which they contended is adequately covered in the short term by the Marine Mammal Protection Act.

The move came barely a day after President Bush warned against attempts to use the endangered species law and other federal statutes to prod action on climate change (see Climate Law Update story here).

Kassie Siegel, an attorney for the Center for Biological Diversity, one of the plaintiffs in the lawsuit, told Climate Law Update the government has handed out oil and gas leases in the region and is also issuing permits for related seismic exploration. Officials, she charged, do not want to go through the additional steps “on any of that stuff” that they would be required to take if the bear were listed. The plaintiffs also issued a written statement criticizing the administration (see text here). 

In a statement (see text here), the Sierra Club, which is not a plaintiff in the case, charged that the government’s delay has “allowed just enough time for the Interior Department to open polar bear habitat to oil drilling.” It added that seismic tests in the Chukchi Sea, a part of the Arctic Ocean, could begin this summer.

Shane Wolfe, an Interior Department spokesman, told Climate Law Update Friday that the court filings, including a sworn statement from Laverty, would speak for themselves “because there’s a lot of information” in them. He added, however, that the Chukchi Sea lease sale had been “long-scheduled” and constituted only a “very early step in the process of producing oil and natural gas.” He pointed to Laverty’s court declaration, which noted that the government had previously determined that oil and gas development, among other potential dangers, “do not threaten the polar bear throughout its range.”

In light of that finding, Wolfe said Interior Secretary Dirk Kempthorne has argued that to cancel the lease sale “would really say that what we said [earlier] wasn’t true.” 

(Photo: Steve Hillebrand, U.S. Fish and Wildlife Service)

Theoretically, an eventual placement of the animals on the list could lead to restrictions on a number of the local activities, as well as adding the agency as a regulatory player in combating climate change. The endangered species law contains provisions mandating that “federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this act.”

Under the law, regulators throughout government are supposed to consider potential impacts on endangered species when carrrying out their duties. That means, for one, consulting with colleagues in the wildlife regulatory agencies. It's a wide net that environmentalists believe should be used to cover government activities such as issuing permits for power plants or new highway construction.

Cummings said the seals face a "double-barreled threat" both from local development, such as oil and gas projects, and from greenhouse gas-related global warming. He noted that new threats to the animals might also develop as the ice disappears, allowing for shipping lanes to open and for additional fisheries to develop.

"It's being viewed as the new gold rush," he said. A listing of the seals would give the creatures some additional protections if the new developments occur.

But he said there would also have to be efforts to curtail emissions of greenhouse contributors such as carbon and methane.

"If we don’t stop global warming, there’s not much we can do for these species,” said Cummings, whose office is in Joshua Tree, California. He noted, for instance, that unlike some other marine mammals such as the walrus that can use dry land as a habitat of last resort, the ribbon seal is never seen on land.

In addition, he said other issues need to be examined “pro-actively,” including the impacts of an ocean fishery that may be shifting geographically northward along with warming waters.

A listing by the fisheries service would also engage an agency, which is housed in the U.S. Commerce Department's National Oceanic and Atmospheric Administration, that the environmental group feels has been historically more responsive to endangered species considerations than its sister bureaucracies. That latter category includes the Interior Department’s Fish and Wildlife Service, with which the organization has repeatedly tangled.

Part of the goal, Cummings said, is to “get [the fisheries service] involved in species management in a changing climate.”

Doug Mecum, acting administrator for the fisheries service’s Alaska region, was reluctant to predict what would result if the seals were to be listed.

“We’re kind of a long ways away from determining what, if anything, might be done,” he told Climate Law Update. He acknowledged, however, that “it’s kind of mind-boggling given the potential scope” of actions that theoretically could be implicated.

At the same time, Mecum suggested his agency’s specific authority had limits.

“I think that first and foremost you look at things under your immediate control,” he said. For example, the agency has since the early 1990s listed some part of the Stellar sea lion population as threatened and others endangered, and officials have identified threats to animals as  diverse as killer whales because of climate change and issues related to the commercial fishing industry. He said the agency has little it can do about the first two and so it has concentrated on regulation related to the fisheries (see recovery plan here).

When it comes to the seals, he said, one thing to look at would be finding ways to mitigate the impact of oil and gas development in their habitat.

On the larger issue of how multiple government agencies would deal with species found to be threatened by climate change, Mecum said he “wouldn’t hazard a guess” about what the future holds.

“This is pretty much new ground we’re breaking here,” he said.      

Clearly, organizations such as Cummings’ intend to press the issue. The Center for Biological Diversity has targeted global warming’s alleged effects on a number of cold-climate animals, including the polar bear and the Pacific walrus, in addition to the seals. It recently joined with other environmental groups to sue the fish and wildlife service (see Climate Law Update story) to prod some action out of the agency on listing the bears. The group has also sent the agency a formal request (see press release and petition) to protect the walrus under the endangered species law.  Regarding more temperate regions of the world, the group successfully pushed the fisheries service into listing two species of Florida and Caribbean coral as threatened because of global warming, and designating "critical habitat" for the invertebrates (see press release).

But traditional wildlife agencies aren’t the only ones facing the group’s legal assault. Attorneys for the organization recently enlarged a lawsuit against the U.S. Department of Energy regarding that agency’s designation of new power transmission line corridors. The lawsuit claimed officials allegedly failed to consider the impacts on endangered species, specifically by not going through the inter-agency consultation process (see lawsuit and Climate Law Update story). In addition, the environmental group in 2007 won a federal appeals court ruling against the U.S. Department of Transportation that just last week produced action to begin considering global warming when setting fuel economy standards for light trucks and sport utility vehicles (see Climate Law Update story).

(Photo of ribbon seal courtesy of NOAA)