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)

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)

Unlike the House bill, a spokeswoman for Cantwell said the Senate legislation contains no reduction in tax breaks for petroleum production to pay for the renewable incentives, a provision that some had predicted would doom the lower chamber’s bill (see Climate Law Update story). However, that leaves it unclear how the estimated $6 billion in tax incentives would be funded.

“We're looking at a lot of different options about how to get it paid for," Ciaran Clayton, communications director for Cantwell, told Climate Law Update. She declined to be more specific. 

Renewable energy proponents have been pushing hard for an extension of the tax inducements, which expire at the end of this year, arguing a lapse could jeopardize tens of thousands of megawatts of new projects, billions of dollars in investments and more than 100,000 jobs (see Climate Law Update story). The number of years to extend the credits has been an issue, with Cantwell herself previously advocating that the renewable production tax credit be extended to 2013.

The Senate bill would extend for one year an income tax credit for the production of electricity from renewable sources such as wind, geothermal, biomass and hydro. That would allow the credit to apply to facilities placed in production through 2009. The House-passed measure would extend that deadline to 2011. Both bills also would stretch the 30 percent business investment tax credit for solar and fuel cell projects through 2016.

The Senate bill also extends other incentives, including tax credits for residential solar and energy efficiency improvements, and a program under which public utilities can issue bonds for renewable energy projects.

A coalition of renewable energy groups and large and small businesses and environmental organizations also sent a letter to senators Thursday urging passage "as soon as possible" of legislation extending tax credits for "energy efficiency and renewable energy technologies and consumer purchases of energy efficient products." The remarkably eclectic list of signers included such names as the Natural Resources Defense Council, the Dow Chemical Company, Duke Energy, Edison Electric Institute, American Council on Renewable Energy, The Home Depot Inc. and the Coalition on the Environment and Jewish Life (see text of letter). 

Despite such diverse support, efforts to keep the credits on track have narrowly failed. In early February, the Senate fell one vote short of defeating a filibuster blocking an amendment to an economic stimulus bill that included an extension of renewable incentives.

"We're just looking for that one last vote," said Clayton, Cantwell's spokeswoman. She said backers were hoping to move the bill "quickly, and also gain momentum and support for it." 

Ensign, in an apparent reference to the decision to leave the oil industry untouched, stressed the need to move forward (see full statement):

“We have an opportunity to break the stalemate in the Senate. Especially at a time when our economy is struggling, we should not be increasing taxes to pay for incentives. These incentives are necessary for our energy security and to help jumpstart our economy.”

An advocate for the solar industry immediately backed the new legislation. Rhone Resch, president of the Solar Energy Industries Association, called the bill “a much-needed shot in the arm for our ailing national economy” and he pledged to work with the lawmakers for a long-term extension of the investment tax credit (see full statement).

 (Photograph of U.S. Sen. Maria Cantwell, D-Washington, via Wikipedia)