ENDANGERED SPECIES:

Some see EPA's climate proposal prodding Interior on ESA

Environmental groups that have been trying through a series of lawsuits to force U.S. regulation of greenhouse gases to protect endangered species say they have been given a valuable legal weapon in a new U.S. EPA proposal that calls such emissions a threat to public health.

The Center for Biological Diversity, the Natural Resources Defense Council and other groups tried using lawsuits citing global warming to force the Bush administration to protect the polar bear and several other species, only to be thwarted by the Interior Department's posting of a rule that explicitly exempted greenhouse gases from Endangered Species Act regulation.

Now, some of those groups see EPA's proposed "endangerment finding" -- which could lead to regulation of greenhouse gases under the Clean Air Act -- as a tool to prod the Obama administration to reverse that rule. Brendan Cummings, an attorney for the center, said EPA's proposal is "recognition that existing law can and should be used to address the climate crisis."

"We don't need to wait for Congress or an international agreement," Cummings said.

For now, the decision rests with Obama's Interior secretary, Ken Salazar. Congress has given him authority to strike the greenhouse gas exemption and other Bush-era changes to the Endangered Species Act. He must act by May 10.

If Salazar opts to leave Bush's policies in place, the battle heads to court, where the center and other groups are suing to overturn the policies.

The Fish and Wildlife Service, the Interior agency whose biologists conduct reviews of endangered species proposals, is developing a policy to clarify the relationship between greenhouse gas emissions and Endangered Species Act protection.

Along with the polar bear, the law also extends protection to two species of coral and a California mollusk threatened by rising water temperatures. Federal biologists are reviewing ESA proposals for three Arctic seals that share the polar bear's sea-ice habitat. The center is suing to reverse Interior's denial of its petition to protect a fourth seal species.

The Fish and Wildlife Service is also considering a petition to list the pika, which is losing its Rocky Mountain habitat as mountaintop temperatures rise.

Dan Ashe, the service's top science adviser, said it is too soon to tell how EPA's proposal would affect his agency's stance on carbon emissions, but he said it would pressure the service to find a definitive answer.

Signals from Interior

The early indications suggest environmental groups will not like the Obama administration's answer much more than the Bush administration's.

David Hayes, Obama's nominee to be Salazar's second-in-command, told senators during his confirmation hearing that the endangered species law was ill-suited for addressing climate change. Tom Strickland, Obama's pick as the assistant secretary for fish, wildlife and parks, said the same at his hearing.

Critics from both parties say using the law to regulate emissions would create a regulatory tangle by dumping more projects on the Fish and Wildlife Service, which already faces a backlog of species work and appears hesitant to add climate regulation to its to-do list.

"We have zero legislative authority to regulate carbon emissions. That's just not what we do," service spokesman Josh Winchell said in February. "With the polar bear, the science definitely pointed to climate change, but that doesn't all of a sudden give us the authority to address the underlying cause, which is carbon emissions."

In announcing the polar bear listing, former Secretary of Interior Dirk Kempthorne accused environmental groups of abusing the Endangered Species Act in an attempt to create a "backdoor climate policy outside our normal system of political accountability" (E&ENews PM, May 14).

Not so, says Janette Brimmer, an attorney with Earthjustice, the environmental law firm that has represented the environmental groups in many of their court battles.

Brimmer says the groups are using the act to protect sensitive species from climate change, just as they would to protect them from any other threat.

She said employing the best-available science to prevent projects from harming endangered species will often require federal biologists to take carbon emissions into account. That is not abusing the act, she said, that is just letting it do its job.

Brimmer and Cummings said the Endangered Species Act should not replace the Clean Air Act or a law from Congress in addressing climate change, but Cummings said it would be a useful supplement.

And unlike comprehensive climate legislation, he said, the Endangered Species Act is available right now.

To dismiss current tools as inadequate while waiting for new ones, Cummings said, "is just a nuanced way of saying we should do nothing."

Click here for more on EPA's carbon dioxide endangerment finding.

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