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New Greenhouse Gas Lawsuit Seeks Broad Changes to Federal Programs Under Endangered Species Act


02/02/09

As part of its continuing effort to use the Endangered Species Act ("ESA") to regulate greenhouse gas emissions, the Center for Biological Diversity ("CBD") filed a new lawsuit on January 15, 2009 that could result in dramatic changes to a wide range of federal programs.  CBD is seeking a court order that requires six federal departments to act on a CBD petition.  CBD's petition demands that when the Departments of the Interior, Commerce, Agriculture, Transportation, Defense, and Energy, and the Environmental Protection Agency make decisions that they consider the impact of global warming on endangered and threatened species.  If granted, the CBD petition would impact a broad range of federal programs and activities.

CBD, which has filed numerous petitions and lawsuits under the ESA, is using the ESA and the petition process to force federal agencies to regulate global warming regardless of what Congress may do with pending global warming legislation.  CBD's Complaint states that greenhouse gas emissions may be "leading to catastrophic extinction" of species.  Citing the Supreme Court statement in Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 (1978), CBD asserts the ESA is intended to "halt and reverse the trend toward species extinction, whatever the cost." 

The ESA directs federal agencies to "insure" that any action they fund, undertake, or permit is not likely to jeopardize the continued existence of any protected species or adversely modify the critical habitat of any such species.  16 U.S.C. § 1536(a)(2).  CBD seeks to force the federal agencies to (1) review the global warming impact of all projects under their jurisdiction, (2) implement measures to mitigate global warming and other impacts of agency actions on ESA protected species, and (3) implement endangered species recovery plans.

The lawsuit names all of the petitioned agencies as defendants except the Department of Energy.  The Energy Department was not sued because it previously denied CBD's Petition.  While the suit asks only that the defendants respond to CBD's petition, CBD's ultimate intent is to force the six named agencies and the Energy Department to use the ESA to regulate greenhouse gas emissions.  CBD's press release states that the suit will provide the Obama Administration with a legal platform to integrate endangered species protection and global warming mitigation throughout the federal government.  Significantly, on January 21, the newly appointed Director of the Office of Management and Budget issued a memorandum allowing agency heads to abandon and settle lawsuits challenging actions by the Bush Administration in cases where the agency head believes it is appropriate to do so.

George Mannina is a Partner in Nossaman's Washington, DC office who has more than three decades experience with environmental litigation and government relations.  He has demonstrated expertise with oceans and fisheries law, the Endangered Species Act (ESA), the Superfund Natural Resource Damages and the Clean Water Act (CWA).  He can be reached at 202.887.1491 or gmannina@nossaman.com.

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