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Global Warming Debate Spawns Aggressive New Push to Protect Endangered Species
By James P. Walsh and Craig Gannett
[Feb. 2007]
In the flurry of media attention surrounding Congressional climate change activity and the latest report of the United Nations Intergovernmental Panel on Climate Change, one could easily have missed an extraordinary rulemaking petition filed by environmental groups with several federal agencies, asking for immediate changes to efforts to protect “imperiled species” from the effects of global warming.1 Based on the strict directives of the Endangered Species Act (ESA), the petition urges the federal agencies to implement recovery plans for all 286 species listed as endangered under the ESA, and to ensure that the effects of global warming are taken into account in those plans. Currently, very few endangered and threatened species have approved recovery plans.
Given that existing efforts to protect such species as salmon and the spotted owl have not considered in detail the issue of climate change, the petition may well be the “mother of all ESA petitions” for many species. Using a statute that allows any citizen to petition the federal government for new regulations, 5 U.S.C. § 553(2), the petitioners ask that the following regulatory directives be issued under authority of the ESA:
1. Ensure that federal agencies consider the impact of global warming in decisions affecting imperiled species and their recovery
2. Require that federal agencies implement recovery plans and build recovery programs around them
3. Ensure that federal actions contribute to, and do not undermine, species recovery
4. Increase the utility and scientific basis of federal recovery plans
5. Adopt timely recovery plans and revisions based on the best scientific information available for all listed species
6. Enhance the role of state governments in cooperative recovery efforts
7. Increase cooperation and collaboration with private landowners in recovery efforts
8. Simplify and strengthen the designation and protection of critical habitat areas to achieve recovery
These requested regulatory changes reflect, in part, statutory changes to the ESA sought by environmental groups over the last several years. In lieu of legislative changes, the petitioners clearly see the urgency of global warming as creating new opportunities to use the broad powers of the ESA more expansively and aggressively. The veiled implication is that, should the Administration fail to adopt the requested regulatory changes, lawsuits could follow that call into question all current plans to protect species listed under the ESA. The basis: substantial environmental change brought on by global warming.
This petition has both major policy and political implications, and will be receiving much more attention in the coming months and years. Along with the larger debate over the human consequences of climate change, the debate over how the administration of the ESA should reflect climate change has now begun. Giving the action-forcing power of the ESA, this debate may lead to on-the-ground consequences in federal permitting and licensing proceedings well before other climate change-related policies are fully implemented through new federal legislation.
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FOOTNOTES:
1 Entitled “Endangered Species and Global Warming Initiative,” this Administrative Procedure Act petition was filed with the Secretaries of the Interior, Commerce, Energy, Agriculture, Transportation, Defense, and the Environmental Protection Agency, dated Feb. 1, 2007. The petition was signed by William J. Snape, III, senior counsel, Center for Biological Diversity, with several other environmental organizations joining in the petition.
This Advisory is a publication
of the Energy Department of Davis Wright Tremaine LLP. Our purpose
in publishing this Advisory is to inform our clients and friends
of recent developments in energy law. It is not intended, nor
should it be used, as a substitute for specific legal advice
as legal counsel may only be given in response to inquiries
regarding particular situations.
Copyright © 2007, Davis Wright
Tremaine LLP.
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