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Providing coverage of Alaska and northern Canada's oil and gas industry
March 2011

Vol. 16, No. 11 Week of March 13, 2011

Climate models critical to ESA listings

The listing of animals threatened by warming climate hinges on how far into the future models can predict future climate trends

Alan Bailey

Petroleum News

There was a time, not too many years ago, when wildlife such as the Lower 48 bald eagle qualified for protection under the Endangered Species Act because a precipitous population decline had flagged the imminent possibility of extinction. But nowadays, with increasing concern about the Earth’s warming climate, there has been a burgeoning trend to list species perceived to be threatened by climate change, regardless of whether the populations of those species have shown any inclination to drop.

The poster child for this new trend is the polar bear, listed as threatened in 2008 because of the destructive effects of global warming on the bear’s sea-ice habitat.

Climate models

Climate-change-related listings depend on climate models that make predictions about future climate trends. And all of the recent listing decisions have hinged on the same climate science, the science presented in the fourth report of the Intergovernmental Panel on Climate Change, or IPCC, Jason Morgan, an attorney with law firm Stoel Rives LLP, told the Law Seminars International’s Endangered Species Act — Impacts on Alaska seminar on Feb. 24.

The question of how to predict the future is critical in the application of the ESA because of wording in the act that says a species is threatened if there is a likelihood of the species becoming extinct at some time in the “foreseeable future.”

But, in the context of climate change, what exactly is meant by “foreseeable,” and how far into the future can the climate be foreseen? If climate science were to predict the extinction of 50 percent of current species in 200 years, would that constitute the foreseeable future and, if so, what impact would that forecast have on the application of the ESA, Mason asked.

The IPCC report made climate predictions through to 2050, using existing, known greenhouse gas concentrations in the atmosphere, with the models becoming markedly less certain beyond that time window. So, the period to 2050 became the “foreseeable future” for the polar bear listing, with the U.S. Fish and Wildlife Service using the IPCC climate predictions to project future loss of the polar bear’s sea ice habitat.

“They picked the 45-year foreseeable future because for the first half of the 21st century, to 2050 or so, the models used by the IPCC are largely based on existing carbon inputs,” Morgan said.

Further into the future

But in the case of the Pacific walrus, another Arctic species that uses a sea-ice habitat, Fish and Wildlife appears to have moved that foreseeable future time horizon out towards 2100 by considering IPCC climate models that project beyond 2050, Morgan said. In February the agency designated the walrus as warranting protection under the ESA but currently precluded from protection because of insufficient agency resources to deal with listing the species — Fish and Wildlife has a system for prioritizing proposed listings and has placed the walrus at a lower priority than some other species.

The National Marine Fisheries Service, the federal agency responsible for the management of most U.S. marine mammals, also pushed the time horizon farther out by using climate projections to around 2100 in its December 2010 proposal to list the ringed and bearded seals as threatened, Mason said.

On the other hand, a December 2008 NMFS decision not to list the ribbon seal probably resulted from the restriction of climate predictions to a 50-year window, he said. But the current trend to move the “foreseeable future” time horizon out to 100 years will likely trigger an increasing number of listings.

“The longer the horizon gets out on foreseeable future … the more species seem to fall within that net,” Mason said.

In addition, the fact that the Fish and Wildlife Service, an agency within the Department of the Interior, oversees polar bears and walrus, while NMFS, an agency within the National Oceanic and Atmospheric Administration, oversees other marine mammals has also been leading to some inconsistencies in the way in which the ESA is being applied, Mason said.

Special ESA rules

These inconsistencies have become particularly evident in the use of section 4(d) of the act, the section that allows the regulating agency to instigate special regulations for a threatened species. In the case of the polar bear, Fish and Wildlife introduced a special 4(d) rule allowing this species to be protected under the regulations of the Marine Mammals Protection Act and the Convention on International Trade in Endangered Species, with this rule being of particular benefit to the petroleum industry and to communities within the polar bear’s range. Fish and Wildlife also backed the ESA out of greenhouse gas regulation by implementing a 4(d) rule excluding activities outside the bear’s range from incidental take considerations — without this rule any activity in the U.S. that generates greenhouse gases might be viewed as harassing polar bears.

But NMFS, the agency now facing the listings of multiple sea-ice-dependent species, has so far shown no inclination to introduce 4(d) rules of the type that Fish and Wildlife has introduced, Mason said.

“They’re going to be faced in the near future with having multiple species that are listed on the basis of loss of sea ice, and they’re going to have to wade into this (greenhouse gas regulation) question, unless … they put out their own 4(d) rule,” Mason said.

Consultation costs

A key provision of the ESA is the requirement for consultation with the appropriate regulating agency if an activity involving the federal government may impact a listed species (almost all industrial activities in Alaska involve the federal government in some way). The regulating agencies have downplayed the potential costs of these ESA consultations, but industry has estimated that the cost of a consultation could run to hundreds of thousands of dollars — companies have to go through the consultation process thoroughly or risk having projects stopped through litigation, Mason said.

And, for companies operating in Alaska, the designation of listed species critical habitat over wider and wider areas of territory is also causing major concern, with the designation of 187,257 square miles of polar bear critical habitat attracting particular attention. The designation of critical habitat will create process related costs for people conducting projects and may prohibit certain projects, Mason said. The regulating agencies have adopted a position saying that critical habitat designations do not have much impact beyond that of the ESA consultation requirements, but there is reason to believe that it is more difficult to carry out a project in an area of critical habitat than elsewhere, he said.

“There is the potential for critical habitat to effectively preclude certain projects from happening just by virtue of its existence,” Mason said. “It becomes politically untenable for an agency to authorize certain projects within designated critical habitat, simply because it is critical habitat.”





An environmentalist view of the ESA controversy

While those who wish to promote the development of Alaska natural resources worry about the obstacles that Endangered Species Act listings may place in the way of development projects, people on the environmental side of the ESA debate see the act as an essential tool in the conservation of wildlife.

The Center for Biological Diversity, with its mantra that human wellbeing depends on a sustained diversity of wildlife, has spearheaded the use of the ESA to protect species that it believes to be threatened by climate change.

“I spend a lot of time (thinking) … about how we as people are impacting the species, and how we’re impacting polar bears and all the Arctic species,” Rebecca Noblin, Alaska director of the Center for Biological Diversity, told the Law Seminars International’s Endangered Species Act — Impacts on Alaska seminar on Feb. 24. Arctic sea ice is shrinking faster than climate models have predicted and sea ice is important to the survival of many Arctic species, she said.

Polar bears vulnerable

Polar bears, for example, range across huge areas of sea ice, raising their young and preying on seals that live on the ice. And, although the bears can swim, swimming expends much energy and does not allow the bears to hunt. More polar bears are starving and people are observing increasing numbers of bears drowning, Noblin said.

“Greenhouse gases that we put into the air right now are going to keep warming the Earth for another 50 years,” Noblin said. “So if we wait until polar bear populations have completely crashed because of global warming, it’s too late. … The time to act is now.”

Congress wrote the ESA to be very broad in its application and the act is intended to address all kinds of threats to species, including climate change, Noblin said. People need to consider the potential impact on Arctic species when planning a project that may result in increased greenhouse gas emissions, she said.

Van Tuyn: an uncertain world

Peter Van Tuyn, an attorney with Bessenyey and Van Tuyn LLC, has represented the environmental lobby in several high-profile court cases, including the successful appeal against the U.S. Minerals Management Service 2007-12 outer continental shelf lease sale program.

“What we’re trying to deal with here … is how to manage in a world of great uncertainty — how does that relate to specific decisions that people can get really frustrated with, especially if they’re project proponents, or just really challenged with if they’re agency employees, just trying to make reasoned decisions within the law,” Van Tuyn said.

The United States was the first country in the world to establish a national policy, making the protection of other life on Earth a priority — history has shown that societies that protect their environments tend to thrive while those that do not tend to fail, Van Tuyn said.

But there is a near hysteria in Alaska over the use of the ESA, even although experience from the Lower 48 demonstrates that the cost of ESA compliance need not be high, Van Tuyn said. There have been relatively few determinations that planned activities will adversely impact protected species and, where an adverse impact has been determined, it has generally been possible to find alternative, acceptable ways to conduct projects, he said.

Alaska is home to an ancient culture and also has wildlife that is the envy of the world; the state has fisheries that earn billions of dollars per year; and tourists travel to Alaska to see natural bounty no longer seen elsewhere, Van Tuyn said.

—Alan Bailey


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