Associations find 'Alaska gap' in DOI's polar bear designation

The American Petroleum Institute said on Sept. 5 that it wasn't questioning the US Department of the Interior's decision to list the polar bear as a threatened species when it filed a motion on Aug. 27 to intervene in a lawsuit challenging the findings.

The American Petroleum Institute said on Sept. 5 that it wasn't questioning the US Department of the Interior's decision to list the polar bear as a threatened species when it filed a motion on Aug. 27 to intervene in a lawsuit challenging the findings.

In fact, the trade association's statement continued, API agrees with DOI's May 15 "determination that the Endangered Species Act is not the right tool to set US climate policy . . .

"The oil and natural gas industry is committed to the conservation of the polar bear and other marine mammals. Companies active in Arctic region energy exploration implement polar bear mitigation and avoidance programs, and they provide funding and logistical support for important polar bear studies carried out in the United States and in Canada," it said.

The US Chamber of Commerce, National Association of Manufacturers, National Mining Association and American Iron and Steel Institute joined API in the motion which was filed in US District Court for the District of Columbia. The case is Center for Biological Diversity et al vs. Dirk Kempthorne et al.

'Discriminatory carve-out'

The motion states that the five business groups are not challenging the listing itself. Their concern centers on "a discrete provision of only one paragraph of the rule, the discriminatory carve-out of operations in Alaska from an exemption provided to operations in all other states." They call this "the Alaska gap."

"Environmental activists are trying to use the Endangered Species Act as a back door to set national climate policy, and they're starting with Alaska. Climate change is a global issue and requires a global solution. Singling out Alaska to impose burdensome and onerous regulation is bad policy and violates the law," Robin Conrad, executive vice president of the National Chamber Litigation Center, said on Aug. 28.

While US Interior Secretary Dirk A. Kempthorne said that the ESA was not an appropriate vehicle for limiting greenhouse gas emissions, he also used authority under Section 4(d) of the law to issue a special rule which made all states except Alaska exempt from complying with a permitting process for activities that produce carbon dioxide, Conrad said.

'Arbitrary and capricious'

"It is arbitrary and capricious for the secretary to single out Alaska for regulation, given [his] own scientific judgment that no causal link can be established between a particular emissions source and any harm to Arctic ice," she maintained.

The groups' concern is minor compared to the uproar which greeted Kempthorne's decision to propose changes in the ESA itself. "The existing regulations create unnecessary conflicts and delays. The proposed regulations will continue to protect species while focusing the consultation process on those federal actions where potential impacts can be linked to the action and the risks are reasonably certain to occur," he said on Aug. 11.

Environmental groups said that the proposals would gut the law. US Senate Environment and Public Works Committee Chairwoman Barbara Boxer (D-Calif.) asked Kempthorne to extend the comment period and scheduled a hearing on the matter for Sept. 24.

Contact Nick Snow at nicks@pennwell.com

More in HSE