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Find out more from the Center for Biological Diversity:
Global Warming and Endangered Species
Law360, January 20, 2009

Feds Ignore Impact Of Warming On Species: Suit
By Jesse Greenspan

New York -- The Center for Biological Diversity has accused six federal agencies of ignoring for two years its petition asking the U.S. government to factor the impacts of global climate change into its decisions affecting endangered species.

On Thursday, the Center for Biological Diversity sued the six agencies in the U.S. District Court for the District of Columbia, alleging they violated the Administrative Procedure Act by neglecting to respond appropriately to its Feb. 1, 2007 petition.

The Center is asking the court to order the agencies to respond to its rulemaking petition within 60 days.

The petition outlined the group's Endangered Species and Global Warming Initiative and asked for an array of regulatory additions, revisions and clarifications to incorporate the effects of global warming into protections for endangered species.

The group claims these rule changes would advance the goals of the Endangered Species Act by minimizing the loss of imperiled species from the effects of climate change, such as loss of habitat from melting glaciers.

The Center sent the petition to seven U.S. agencies: the Environmental Protection Agency and the Departments of the Interior, Commerce, Defense, Transportation, Agriculture and Energy.

The complaint alleges that five of those agencies violated the APA by not even acknowledging the receipt of the petition. A sixth agency, the EPA, alerted the plaintiffs that it was “in receipt” of the petition but never updated the Center on its status, according to the complaint.

The Department of Energy was not included in the complaint because it denied the Center's petition.

“Two years is an unreasonable delay under the APA ... for an agency to completely fail to reply and/or respond to a petition, particularly one on a topic as urgent as global warming and its impact upon plant and animal species threatened with extinction,” the complaint said.

The U.S. Department of Justice could not confirm that it has been served with the complaint. “When we are, we will review and respond in court at the appropriate time,” said DOJ spokesman Andrew Ames in an e-mail message.

Among the specific rule changes the Center suggests to combat the effects of climate change on species is a requirement that the government review “the global warming contribution” of federal projects and that it minimize those impacts on imperiled species.

The Center is also asking the federal government to catalog the endangered, threatened and candidate species that face global warming threats. “Global warming is the fastest-growing threat to endangered species,” said Bill Snape, senior counsel for the Center and lawyer for the suit, in a prepared statement.

“It is pushing hundreds of species, including the polar bear, walrus ... woodland caribou, and wolverine to extinction,” he added.

Despite the push of conservation groups to protect endangered species from the effects of global warming, the Bush Administration has been adamant about preventing the ESA from being used to regulate greenhouse gas emissions.

The government amended the ESA in December to allow federal agencies to sidestep a requirement that they consult with scientists on projects that could affect imperiled species.

U.S. Secretary of the Interior Dirk Kempthorne defended the amendments, saying they were needed to prevent the ESA from regulating climate change. “When I announced the listing of the polar bear as threatened in May ... I also announced that day that we would propose common-sense modifications to the existing regulations in order to provide greater certainty that the listing would not become a back door for setting climate change policy,” he said at the time.

The plaintiffs were represented by William J. Snape, counsel for the Center for Biological Diversity. Attorney information wasn't immediately available for the six federal agencies.

The case is Center for Biological Diversity v. U.S. Interior Department et al., case number 1:09-cv-00090, in the U.S. District Court for the District of Columbia.

Photo © Paul S. Hamilton