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Soundings Archive

Industry Sues over "Alaska Gap" in FWS Polar Bear Listing
On August 27, 2008, several industry groups sued the U.S. Fish and Wildlife Service over FWS' recent listing of the polar bear as 'threatened" under the Endangered Species Act. The case is filed in the U.S. District Court for the District of Columbia. The plaintiffs are some of the country's largest and most powerful trade associations: the American Petroleum Institute; the National Chamber of Commerce; the National Mining Association; the National Association of Manufacturers; and the American Iron and Steel Institute.

Their complaint states that they are not challenging the listing itself or most of the accompanying rule. They are only challenging "the discriminatory carve-out of operations in Alaska from an exemption provided to operations in all other states...(hereinafter the 'Alaska Gap')."

According to the industry groups' complaint, the FWS concluded in the polar bear listing rule "that neither climate change, nor any effect of climate change, can be traced to particular activities in particular locations. On that basis, FES accompanied its Listing Rule with the 4(d) rule which generally exempts greenhouse gas emitting activities from section 9 requirements to which they might otherwise be subject." However, and

    "in a sharp contradiction with FWS's own determination that climate-change-based effects on polar bears cannot be traced to emission activities in any particular location, the 4(d) Rule excludes Alaska from the section 9 exemption. The Alaska gap thus exposed Alaska operations to increased permitting burdens and/or the risk of enforcement by Government authorities and citizen suits-risks that operations elsewhere in the United States do not face and that are contrary to FWS's own determinations about the nature and effects of global climate change. The associations therefore are challenging the Alaska Gap as an irrational exercise of administrative authority that discriminates against Alaska operations."
  • Click here to read industry's polar bear complaint

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