Polar bear just the beginning of Arctic species litigation (and a postscript on ESA Section 10 permits)
In two recent press releases, the Center for Biological Diversity has announced its future litigation plans, and in the process, has signaled its future plans. First, CBD declared its intention to seek Endangered Species Act protections for the Pacific walrus. See press release (May 27, 2008). The next day, CBD announced its plans to file similar suits seeking protection for the Ringed, Bearded, and Spotted Seals in Alaskan waters. See press release (May 28, 2008). In both cases, CBD cited the threats of global warming as necessitating an ESA listing. So, while the Bush Administration will continue to protest the use of the ESA as a tool to address climate change policies, see ESA Blawg (May 15, 2008) and while editorial columnists will fret over the polar bear listing as a legal disaster, see http://www.nationalpost.com/opinion/story.html?id=533276, the Center for Biological Diversity clearly has a very different vision. Apparently, the listing of arctic species will be a critical aspect of their litigation strategy, and ESA watchers can expect that the statute will continue to be used as a substitute for a meaningful climate change law. See ESA Blawg (March 2, 2008). In other words, the polar bear decision is just the beginning.
Photo of Pacific walrus from U.S. Fish & Wildlife Service
P.S. A couple of days ago I mentioned a Federal Register notice related to an HCP for 0.23 acre impacts to scrub jays. Similarly, in today’s Federal Register, the U.S. Fish and Wildlife Service solicited comments on a “low effect” Habitat Conservation Plan for the endangered San Bernardino kangaroo rat, pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973. See 73 Fed. Reg. 30965 (May 29, 2008). In the announcement, the Department of Interior explains that the proposed pipeline maintenance and operations on the Calnev 8-inch and 14-inch pipelines in Cajon and Lytle Creek Wash, San Bernardino County will have minimal effects, because “each dig will impact approximately 0.02 acre of land, and this permit would authorize a maximum of 0.5 acre of impact in total.”
Other environmental laws would probably address such limited impacts through a “no-notice general permit” or other administratively simple device. Indeed, under NEPA, the pipeline project qualified for a categorical exclusion. Thus, these ESA Section 10 permits are examples of the power (and burden) of the ESA, and the extraordinary commitment of the law to species preservation, because even small projects can require noteworthy effort and commitments by the permit applicants to protect endangered and threatened species.