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Providing coverage of Alaska and northern Canada's oil and gas industry
January 2009

Vol. 14, No. 3 Week of January 18, 2009

Is the ESA endangering development?

The ever increasing catalogue of listed species in Alaska worries would-be developers; but are these concerns misplaced?

Alan Bailey

Petroleum News

A plot on a map of Alaska of the distribution of animals, fish and plants potentially listed under the Endangered Species Act all but covers the regions offshore the state, as well as significant areas onshore. So how might the widespread application of the ESA impact resource development? And what are the relative benefits and downsides of this high-profile piece of environmental legislation?

Several speakers at the Resource Development Council of Alaska’s annual conference in November addressed these difficult questions.

Evolving focus

Donald Baur, senior partner with Perkins Coie LLC, said that since the implementation of the ESA in 1973, the act had focused on a broadening range of species. However, with the recent polar bear listing and the consideration of the listing of seven other species of animal impacted by receding sea ice, climate change has recently become a major focus.

“Climate change will be the driver for the ESA in Alaska,” Baur said. There will be considerable litigation and Alaska will be the battleground for applying the ESA, he said.

Denby Lloyd, commissioner of the Alaska Department of Fish and Game, said that the state supports wildlife conservation and that, overall, the ESA has been beneficial for Alaska. Lloyd cited the example of the Aleutian Canada goose, which was one of the first species listed under the act. The primary action under the recovery plan involved the removal of introduced foxes from the islands where the birds live. The goose population started recovering in 1990 and the species was de-listed in 2001.

“This represents a significant success story,” Lloyd said.

Lloyd also said that, following the implementation of a recovery plan for the steller sea lion, which was listed in 1990, the eastern sea lion stock has achieved its recovery goals to date. The western stock is still recovering and remains in an endangered status.

Polar bear listing

However, the state is challenging the U.S. Department of the Interior’s May 2008 decision to list the polar bear as threatened, Lloyd said. There is too much uncertainty in the model projections regarding the polar bear population to make this decision, and the modeling indicates that the animals are not becoming extinct. Moreover, the polar bears are already adequately protected under the Marine Mammal Protection Act, Lloyd said.

Lloyd also criticized the recent listing of the Cook Inlet beluga whales as endangered. Recent beluga whale population data indicate that the whale population is rising and further annual population counts are needed, he said.

“We feel that this decision is premature,” Lloyd said.

And Lloyd questioned the way in which population models are used to estimate future population trends. How far into the future can populations really be predicted, he asked. He also commented that the Department of the Interior has used highly conservative risk levels as criteria for protecting an animal from extinction.

Climate change

And, when it comes to the recent attention on the impact of climate change on wildlife, as in the polar bear listing, the U.S. Fish and Wildlife Service acknowledges that regulating climate change is not realistic, Lloyd said. That raises questions such as how to define critical habitat for listed species and how to define recovery objectives, especially for species currently at healthy population levels but potentially threatened by climate change. Can threats such as climate change actually be removed?

At the same time, listing decisions will impact resource development in Alaska because of restrictions on activities that might impact listed species, Lloyd said. And, as more and more species become listed, it is likely that the various efforts to minimize and mitigate environmental impacts will start to conflict with each other, he said.

Listing decisions must be based on reasonable criteria, Lloyd said. Those criteria need to include reasonable timeframes for population projections, reasonable levels of extinction risk and reasonable recovery objectives.

Safety net

John Schoen, Ph.D., senior scientist in the Audubon Society, told the conference that the ESA is a critical conservation tool that provides a safety net for wildlife and plants in Alaska’s lands and waters. People depend on those lands and waters for their quality of life, he said. On the other hand, Schoen said that he also understands the need for energy development.

“We think that the ESA is a good law,” Schoen said. “We believe that the ESA rarely stops development and it’s working in Alaska. We don’t think of the ESA as a hammer to stop development. … Those who do (think that way) diminish the law.”

Few projects get to a point in the ESA consultation process where a project cannot proceed, he said.

“We have the steller and spectacled eider, both threatened species on the North Slope, and they haven’t stopped oil and gas development,” Schoen said.

On the other hand the provisions of the ESA have resulted in the successful recovery of species such as bald eagles and Yellowstone grizzly bears in the Lower 48, Schoen said.

And, when it comes to the polar bears, Audubon does not think that the ESA can address climate change but, on the other hand, it is clear that the future survival of the bears is under threat because of receding sea ice. Population models estimate that the bears will be eliminated from Alaska waters in 45 to 75 years, Schoen said.

“There’s no doubt that the polar bear meets the statutory requirements for listing. … We think a recovery plan will help us be precautionary in the Arctic,” Schoen said. “We don’t see this as stopping oil and gas development.”

Audubon also supports the listing of the Cook Inlet Beluga whales.

“The population is very small. … Females have low productivity. … One mass stranding, a natural event, could put the population over the brink,” Schoen said. “We think it makes sense to list the population.”

The listing of the whales does not mean that human activity in the Cook Inlet needs to come to a halt, but precautionary measures are needed, he said.

Tension

Kaush Arha, deputy assistant secretary for fish, wildlife and parks in the U.S. Department of the Interior, talked about the tension between conservationists and industry on issues such as the listing of the polar bear. Industry tends to be comfortable with risk while biologists tend to be risk averse, so there is a need to find a balanced position, he said.

“The thing that makes it work always is cool heads and good information,” Arha said.

The declining extent of the sea ice that forms the polar bear’s habitat forced a listing decision, he said.

“The ice was declining even faster than … the models were predicting,” Arha said. “… With that particular evidence confronted, the secretary (for the Interior) on May 15 announced the polar bear to be a threatened species.”

On the other hand, the potential impact of greenhouse gases on the survival of polar bears is “a tricky and complex issue,” Arha said.

At the time of the polar bear listing the director of the U.S. Geological Survey wrote to the director of the U.S. Fish and Wildlife Service, saying that present scientific knowledge does not enable people to make a causal connection between greenhouse gases emitted in any particular place and direct impacts on a listed species such as the polar bear, Arha said.

That view has been mentioned in the polar bear listing and is reflected in some proposed changes to the ESA, he said.

Industry not a threat

Interior also determined that the oil and gas industry did not pose a particular threat to the bears, Arha said.

“The review was done of all the threats to the bear,” Arha said. “It was not determined that oil and gas activities were a major factor. … It was the decline in sea ice.”

The current measures for protecting the bears under the terms of the Marine Mammal Protection Act would cover the requirements under the ESA, he said. And because the polar bears are listed as threatened rather than endangered there is flexibility in determining appropriate conservation measures.

There is a recognition that government needs to consult industry and that people need energy. It is necessary to figure out how to balance the nation’s energy needs with conservation issues, Arha said.

Get involved

Cherise Oram, senior partner with Stoel Rives LLP and immediate past chair of the American Bar Endangered Species Act Committee, talked to conference attendees about the implications of ESA listings and how industry could become involved in the listing process.

There are a lot of opportunities to engage in the complex listing process and, given the potential impact on industry of a listing decision, it is important to determine whether a particular listing makes sense. Potential impacts include prohibitions on the disturbance of a listed species — a “take” prohibition is mandatory for an endangered species and can be applied to a threatened species, Oram said.

By law agencies have to be conservative in applying the ESA, so providing information that narrows the range of uncertainty can help improve listing determinations, Oram said. And agencies do consider economic impacts when designating critical habitat following a listing decision, she said.

If there is a possibility of a listing determination, it is particularly important to think about what information is needed and then start collecting data as early as possible. There is no specific public review period and it is possible to submit information to the government agency at an early stage of the listing process.

“The earlier that you provide the information, the better,” Oram said. “… The further down (the listing process) you get, the harder it is to influence the process.”

People are using the ESA to promote an anti-development agenda in Alaska, Oram said.

But there is a path to the future that involves thinking ahead, thinking strategically about what is happening, developing the appropriate science and becoming involved in the listing process, she said.






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