Litigating the Endangered Species Act

Given the confusion prompted by the varied suits against the Department of Interior regarding its efforts to protect the polar bear — is that vague enough? — allow us to link to our legal department’s description of the litigation from the business associations, including the NAM: American Petroleum Institute v. Kempthorne

American Petroleum Institute v. Kempthorne
(U.S. District Court for the District of Columbia) — Environmental

Whether polar bear regulation should deny Alaskan industry greenhouse gas emissions exemption that applies to other states.

On May 15, the Department of the Interior issued an Interim Final Special Rule designating the polar bear as threatened under the Endangered Species Act, based on its determination that global climate change, resulting from increased concentrations of greenhouse gases in the atmosphere, threatens to injure the bears’ habitat by reducing polar ice. As part of this rule, the Department provided an exemption for greenhouse gas emissions, since they are part of a worldwide phenomenon than cannot be traced to particular activities in particular locations affecting the bears.

This exemption applies to greenhouse gas emissions in all states except Alaska. On August 27, the NAM joined with the American Petroleum Institute, the U.S. Chamber of Commerce, the National Mining Association and the American Iron and Steel Institute in filing a complaint challenging the Department’s omission of Alaska from the exemption. Manufacturing and other business operations in Alaska that may produce greenhouse gases should not be treated differently than those of companies in the other 49 states. This “Alaska Gap” exposes Alaskan operations to increased permitting burdens and/or the risk of enforcement by government authorities and citizen suits.

Our lawsuit challenges the Alaska Gap as arbitrary and capricious, since the best scientific data in the rulemaking record do not demonstrate enough of a connection between specific actions resulting in emissions and an effect on the polar bear.

The NAM supports the exemption for all states from permitting for greenhouse gas emissions that might affect polar bear habitat, not just every one but Alaska. The NAM is not challenging the decision to designate the polar bear as a threatened species.

Related Documents:
NAM complaint (8/27/2008)

API’s news release is here.

Jonathan Adler, a Case Western Reserve law professor, comments at the Volokh Conspiracy, noting first that the suit challenges the differential treatment of the states. Adler: “Not having read the briefs (yet), this seems to me like a more fruitful avenue of attack than a frontal challenge to the listing itself. Overturning a listing decision is quite difficult, and I don’t expect any of the lawsuits to be successful on that front.”

 P.S. The Alaska Gap? Do they sell mukluks?

Join the discussion One Comment

Leave a Reply