Endangered Species Act Alert - Petition to List the Polar Bear Threatens Major U.S. Emission Sources and Alaska Oil & Gas Development

6/1/2005

The Center for Biological Diversity ("CBD") has recently petitioned the U.S. Fish & Wildlife Service ("FWS") to list the polar bear (Ursus maritimus) on a global basis as a "threatened" species subject to the protections of the Endangered Species Act ("ESA"). CBD's petition, which also seeks designation of large portions of the North Slope of Alaska and the adjacent Beaufort Sea as critical habitat for the polar bear, is directed at major emission sources of greenhouse gases ("GHGs") in the Lower 48 states. CBD contends GHGs are the cause of global warming and the resulting loss of summer sea ice habitat in the Arctic. CBD also contends that oil and gas development in the Arctic is an important threat to the survival and recovery of polar bears. If CBD's petition were granted, the resulting ESA listing of polar bears and the designation of critical habitat would pose significant regulatory obstacles to existing and planned oil and gas developments in the State of Alaska, and could also establish a basis for challenges to GHG and particulate emission sources in the United States.

The implications of the pending polar bear listing petition are novel and potentially far-reaching. The listing of polar bears and the designation of critical habitat would have immediate and important adverse consequences for onshore and off-shore oil and gas exploration and development on the North Slope of Alaska. The listing and critical habitat designation may provide further obstacles to development in the Colville River Delta and to initiatives to open the coastal plain areas of the Artic National Wildlife Refuge. A critical habitat designation would also impede potential off-shore exploration and development opportunities.

In addition to these more apparent effects, if the polar bear were listed and critical habitat designated based on environmental impacts attributed to GHG emissions, the consequences of such a finding for all major U.S.-based GHG emission sources and to planned energy and industrial facilities could be significant. Action agencies permitting or authorizing such facilities may be required to consult with FWS under Section 7 of the ESA each time they issue a Title V permit under the Clean Air Act, or take other actions that "may affect" listed polar bears. Such ESA consultations would address whether the direct, indirect and cumulative effects of the proposed action jeopardize the survival or recovery of polar bears, and whether the proposed action adversely modifies designated critical habitat. In the absence of some form of international GHG reduction treaty, were FWS to establish a scientific and legal precedent linking GHG emissions to the melting of summer arctic ice, conservation advocacy groups are likely to both use the FWS findings to drive U.S. policy decisions and to target selected major emission sources for ESA litigation premised upon adverse effects to polar bears and their critical habitat.

Because ESA decisions must be based upon the best available scientific and commercial information, the importance of building a supportive administrative record in ESA listing decisions cannot be over stated. At this point, FWS has received no public comment on the petition. Accordingly, FWS will be developing its own information and conclusions without the benefit of any perspectives or information from affected private and public sources. We often advise potentially affected parties in ESA listing proceedings and represent such parties in related litigation. The single most important strategic course for such parties is to engage early and actively in the administrative process. Involvement is critical to ensure FWS is fully informed of the science behind and policy implications of its decision, and to ensure that if the agency decides a listing is not warranted, the administrative record will sustain that judgment against the inevitable legal challenges.

For more information, regarding the proposed polar bear listing or other natural resources issues, please contact any of the following Stoel Rives attorneys:

Jeffrey W. Leppo, jwleppo@stoel.com, (206) 386-7641

This is a publication of Stoel Rives Environmental Group for the benefit and information of clients and friends. This bulletin is not legal advice or a legal opinion on specific facts or circumstances. The contents are intended for information purposes only. Copyright 2005, Stoel Rives LLP.