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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)

Joining Massachusetts as parties were California, Connecticut, Illinois, Maine, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, the District of Columbia, the city of New York and the government officials of Baltimore. A number of other states also came in as friends-of-the-court in support of the filing. Many of the nation’s largest environmental groups also came on board, including the Natural Resources Defense Council, Environmental Defense Fund and the Center for Biological Diversity.

The latest action came on the one-year anniversary of the U.S. Supreme Court’s landmark Massachusetts v. EPA decision holding that the agency had the authority to regulate the emissions as pollutants under the Clean Air Act. The high court’s ruling did not outright require the agency to issue regulations but it told the EPA it had to consider such issues as whether the public health might be threatened. The ruling came in the context of regulating emissions from motor vehicles but no one believes the implications stop there.

Last week, EPA Administrator Stephen L. Johnson cited the broad potential of a decision to regulate in the area when he informed lawmakers he would take more time to consider the decision under an administrative procedure that could take months to complete. That announcement set off a wave of criticism from Democrats and environmental groups that culminated in Wednesday’s court action. But it also drew praise from some in industry (see previous Climate Law Update stories here and here).

Not all the critics were Democrats. California's Republican Gov. Arnold Schwarzenegger issued a statement Wednesday (see text) chastising the EPA for having "failed to lead" and pledging that the state is "prepared to force it out of the way in order to porect the environment."

In an e-mail to Climate Law Update, Jonathan Shradar, the EPA’s press secretary, said the agency would continue working on the process laid out by Johnson, “taking into account all sources of GHG emission and realizing the best approach for dealing with climate issues.” Shrader characterized the rule-making procedure announced by Johnson as “a reasonable path forward.” 

Advocates of government regulation have not missed the larger implications, either. Bookbinder noted that petitions have already been filed with the EPA seeking to regulate emissions from such sources as power plants. One heated controversy involves a Utah coal-fired power plant for which the EPA issued a permit that is now being appealed by environmentalists, including the Sierra Club, citing the Supreme Court decision (see Climate Law Update story).

Said Milkey:

“While the petition we filed today is specific to motor vehicles, the same logic also applies to power plants. That is, if motor vehicle emissions are causing endangerment then certainly power plant emissions are doing so and EPA has an obligation to regulate them under the Clean Air Act.”

California Attorney General Jerry Brown, who also signed on to the writ, suggested that forcing the EPA to issue its finding would have important ramifications for the national conversation over climate change:

“If this administration says that greenhouse gases endanger public health, then that’s something. That’s an important step that prevents somewhat their continuing obfuscation of this whole matter of global warming.”

The filing puts the case back in the hands of a court that had previously agreed with the EPA’s decision that it lacked the authority to regulate greenhouse emissions (see text of ruling). It was that decision the Supreme Court overturned last year. Bookbinder said the District of Columbia court is where the case started and “they’ll be the one whose job it is to enforce the Supreme Court’s mandate.”

Brown seemed to acknowledge the case might be headed into unfriendly territory.

“There’s some right-wing judges that were put on there and, you know, they have their own view of the world,” he said. He quickly added: “We’re hopeful the strength of the case is so clear that we have a good chance, although we recognize the realities that pertain in present-day Washington.”

(Photo of Massachusetts Attorney General Martha Coakley via Wikipedia)

Critics of Johnson's move said it virtually guaranteed that the EPA would not act during the remainder of President Bush’s term in office, and threats to take the agency back to court flowed freely. The statement from Brown’s office Tuesday charged the EPA had extended “the time period another twelve months” until Bush leaves the White House.

Tuesday's announcement did not say specifically what legal avenue Brown and “dozens of states and national environmental groups” planned to take. But it said their action would be aimed at stopping the EPA “from continuing to ignore the Supreme Court.”

The Supreme Court ruling did not require the agency to issue regulations but it told the EPA it had to consider such issues as whether public health was endangered.

A spokesman for the EPA could not be reached for comment Tuesday.

(Photo of Stephen L. Johnson, courtesy EPA)