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Soundings Archive

Proposed ESA Rule Changes Expressly Address Polar Bears
The United States Fish and Wildlife Service and the National Marine Fisheries Service are jointly proposing significant changes in their regulations governing interagency cooperation under the Endangered Species Act. These rules govern when and how FWS and NMFS consult with other Federal agencies to determine whether the other agencies’ proposed actions are like to harm species listed under the ESA.

The proposed changes in the ESA consultation rules expressly address polar bears, which FWS recently listed as threatened under the ESA:

    “These regulations would reinforce the Services' current view that there is no requirement to consult on greenhouse gas (GHG) emissions' contribution to global warming and its associated impacts on listed species (e.g., polar bears). For example, when a Federal agency provides funding for a new highway, vehicle use of the highway may result in changes in GHG emissions. The proposed revisions make explicit that while the impact of tailpipe emissions on local air pollution could be an effect of the action, the GHG emissions' contribution to global warming and associated impacts to listed species (e.g., polar bears) are not, and the effects of those impacts would not need to be considered in any consultation.

    “First, GHG emissions from building one highway are not an "essential cause" of any impacts associated with global warming. Moreover, any such effects are later in time, but are not reasonably certain to occur (i.e., a finding that an effect is reasonably certain to occur must be based on clear and substantial information, cannot be speculative, and must be more than just likely to occur). For both reasons, impacts associated with global warming do not constitute "effects of the action" under the proposed revision to that definition. See proposed 50 CFR 402.02, 402.03(b)(1), (c). Even if these impacts would otherwise fall within the definition of "effects of the action," they need not be considered in any consultation because under the proposed Applicability section the building of one highway is “an insignificant contributor” to any such impacts. Further, any impacts associated with the GHG emissions from the building of one highway are "not capable of being meaningfully identified or detected in a manner that permits evaluation" and "are such that the potential risk of jeopardy to the listed species or adverse modification or destruction of the critical habitat [from those GHG emissions] is remote." See proposed 50 CFR 402.03(b)(2)-(3), (c).”
These rule changes are very controversial and likely to end up in court. Comments on them are due to NMFS and FWS no later than September 14, 2008.
  • Click here to read Federal Register notice of proposed ESA rules

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