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Global Warming and The Endangered Species Act

Sunday, March 15, 2009  |  posted by Hugh Hewitt
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There are indications that some in the media are finally figuring out that the environmental movement is very serious when it says it intends to use the federal Endangered Species Act and the listings of the polar bear and other species to force regulation of many “lower 48” operations, especially those in the energy business. This article covers a recent gathering of ESA experts wherein the path forward that environmental activists envision was discussed:

Under most traditional interpretations of the Endangered Species Act, an agency like the Bureau of Indian Affairs would have to determine how much of an impact a new coal-fired power plant in New Mexico or Colorado has on polar bears near the North Pole and penguins in Antarctica.

The vexing question is how to measure the site-specific impacts of such a project on a global scale. Top conservation leaders like Kieran Suckling, director of the Center for Biological Diversity, said the federal government is legally obligated to do just that.

The about-to-be-impacted industries have adopted a “hear no evil, see no evil” approach, and have refused the sort of preemptive litigation strategy that would have defined the outer limits of the ESA’s reach via test cases on carbon-emitting activities in industries unrelated to direct energy-production. Had the oil-and-gas industry brought suit, for example, to oblige a small airport expansion to conduct a Section 7 consultation, it could have begun to build a defense against overreaching by the Act’s most aggressive proponents.

Instead it has ceded the legal initiative to the very capable lawyers at the Center for Biological Diversity and other groups, and the rollout of the prevent-global-warming-via-the-ESA strategy is beginning. The impact on energy production across the U.S. will be to sharply curtail new exploration and production and to greatly increase the cost of existing production. Every time a federal permit is proposed that will facilitate energy production –or any carbon-releasing activity for that matter– environmental activists will argue that an ESA mandated permitting process is required. This process, called a Section 7 consultation, is very time-consuming and mandates necessary “mitigations” that are imposed on the sought-after permit. Landowners have learned how to negotiate this regulatory maze in the past two decades, but the vast expansion of jurisdiction foreseen by the advocates of the polar bear and related listings will greatly increase the scope of the Act’s reach and the workload on the Fish & Wildlife Service, not to mention the cost of each permit if a cost can even be calculated.

All of this fallout was easy to predict at the time the Bush Adminstration listed the polar bear last year, but the coverage of the controversy has resolutely refused to explain to the public the enormous price tag it will be paying for the use of ice coverage models in the listing process that were at best speculative and at worse wildly so.

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