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Providing coverage of Alaska and northern Canada's oil and gas industry
May 2008

Vol. 13, No. 20 Week of May 18, 2008

Kempthorne lists polar bear as threatened

Interior secretary accepts scientific studies on loss of sea ice as threat to polar bears; says Endangered Species Act inflexible

Kristen Nelson

Petroleum News

Citing “the best available science” and the inflexibility of the Endangered Species Act, Secretary of the Interior Dirk Kempthorne said May 14 that he has accepted the recommendation of the U.S. Fish and Wildlife Service to list the polar bear as a threatened species.

Kempthorne said the listing will be accompanied by “administrative guidance and a rule that defines the scope of impact my decision will have, in order to protect the polar bear while preventing unintended harm to the society and economy of the United States.”

He said the decision is based on three findings: that sea ice is vital to polar bear survival; that polar bear sea-ice habitat has dramatically melted; and that computer models suggest sea ice is likely to further recede in the future.

“Because polar bears are vulnerable to this loss of habitat, they are, in my judgment, likely to become endangered in the foreseeable future — in this case 45 years.” The ESA defines endangered as a species in danger of extinction and threatened as a species likely to become endangered in the foreseeable future.

Alaska will work with Fish and Wildlife

Alaska Gov. Sarah Palin said in a statement that Kempthorne called her about the decision, and assured her that oil and gas development are not to blame.

She said the state is disappointed with the decision, but stands ready to assist Fish and Wildlife to ensure that polar bear populations remain viable.

“We offer the substantial expertise of the Alaska Department of Fish and Game to assist in the protection of polar bears, and in minimizing negative impacts on the people of Alaska and on important activities elsewhere in the country,” Palin said.

The governor said she remains concerned that federal actions may threaten the oil and gas industry on Alaska’s North Slope. Alaska Attorney General Talis Colberg will review the decision and the administrative record to determine whether there are “significant defects that merit judicial scrutiny.”

State’s delegation disappointed

Disappointed was about as mild as the state’s all-Republican congressional delegation got in responding to the listing.

Rep. Don Young called it “an assault on sound science and common sense.” He said Kempthorne “has determined that opportunities to continue to explore and drill in Alaska will not be impacted and neither will resource and economic development opportunities for Alaskans and Alaska Natives.”

Both Young and Sen. Lisa Murkowski called the decision premature.

“A listing decision based purely on speculation about the future, lack of existing data, and in the absence of better research on bear prey species populations, sets a truly dangerous precedent for listings of a host of wildlife species,” Murkowski said.

“Never before has a species been listed as endangered or threatened while occupying its entire geographic range,” said Sen. Ted Stevens. He said the Fish and Wildlife Service decision “sets a dangerous precedent with far-reaching social and economic ramifications,” and opens the door for other Arctic species to be listed, “which would severely hamper Alaska’s ability to tap its vast natural resources.”

Shell: too early to tell

“It’s too early to determine how today’s listing might impact our planned activities for the Chukchi and Beaufort seas,” Shell Exploration and Production’s Alaska spokesman, Curtis Smith, told Petroleum News in an e-mail.

He said Shell’s polar bear policy “meets or exceeds regulatory requirements” for reporting, training and avoidance. “In the future, as new regulations take shape, Shell will work with regulatory agencies and stakeholders to determine if additional mitigation measures are needed,” he said.

“Shell is absolutely committed to operating in a safe and environmentally responsible manner in the Alaska offshore,” Smith said.

Industry: inappropriate use of ESA

Marilyn Crockett, executive director of the Alaska Oil and Gas Association, said AOGA is disappointed with the decision to list polar bears under the Endangered Species Act.

“From day one we have said that this is an inappropriate use of the ESA, as it was never intended to be used as the vehicle to address climate change. This position was echoed today by Secretary Kempthorne in his remarks,” Crockett said in an e-mail.

She noted that Interior “acknowledged that oil and gas activities have not had a negative impact on polar bear populations.” Those operations, under way for more than 30 years, are “carried out under the very prescriptive provisions of the Marine Mammal Protection Act,” Crockett said. The MMPA has “provided a very effective level of protection for bears.”

“Additionally, industry has spent millions of dollars on its own research and on in-kind and direct support to agencies for research and monitoring over the years; in fact the body of knowledge available today is largely a direct result of oil and gas operations on Alaska’s North Slope,” Crockett said.

Science around loss of sea ice

Kempthorne said he has accepted the science presented by the Fish and Wildlife Service and by the U.S. Geological Survey and has “also accepted these professionals’ best scientific and legal judgments that the loss of sea ice, not oil and gas development or subsistence activities, are the reason the polar bear is threatened.”

Polar bears are already protected under the Marine Mammal Protection Act, “which has more stringent protections for polar bears than the Endangered Species Act does.” The oil and gas industry, he said, has been operating in the Arctic under the MMPA for decades “in compliance with these stricter protections.” Kempthorne said the Fish and Wildlife Service “says that no polar bears have been killed due to encounters associated with oil and gas operations.”

He agreed with a statement made by President Bush in April. The president said: “The Clean Air Act, the Endangered Species Act and the National Environmental Policy Act were never meant to regulate global climate change.”

Kempthorne said while listing the polar bear can reduce “avoidable losses” of the bears, “it should not open the door to use the ESA to regulate greenhouse gas emissions from automobiles, power plants and other sources. … ESA is not the right tool to set U.S. climate policy.”

MMPA standard stricter

Kempthorne said to make sure the ESA “is not misused to regulate global climate change,” the Fish and Wildlife Service will propose “what is known as a 4(d) rule that states that if an activity is permissible under the stricter standards imposed by the Marine Mammal Protection Act, it is also permissible under the Endangered Species Act with respect to the polar bear.” That rule takes effect immediately, he said.

Guidance will also be issued to Fish and Wildlife Service staff that “the best scientific data available today cannot make a causal connection between harm to listed species or their habitats and greenhouse gas emissions from a specific facility, or resource development project, or government action.”

He also said that “ESA regulatory language needs to be clarified,” and said the department will propose “common-sense modifications to the existing regulation to provide greater certainty that this listing will not set backdoor climate policy outside our normal system of political accountability.”

Kempthorne said he worked to reform the ESA while he was in the U.S. Senate, lived with the consequences of ESA decisions while governor of Idaho and now as secretary of the Interior has “experienced the reality that the current ESA is among the most inflexible laws Congress has passed.” He said it prevents him “from taking into account economic conditions and adverse consequences in making listing decisions.”






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