Nov. 30, 2010 by Dan Rohlf

FWS' Critical Habitat Area Designation for Polar Bears is Good News, but How Much Difference Will it Make?

First the good news: the U.S. Fish and Wildlife Service (FWS) last week designated a huge expanse of barrier islands, denning areas, and sea ice in the Arctic as “critical habitat” for polar bears under the federal Endangered Species Act. The largest such protected area in the ESA’s history, the new critical habitat covers an area larger than the states of Oregon and Washington combined.

FWS listed polar bears as “threatened” in 2008, after a petition from environmental organizations and a study by the U.S. Geological Survey indicated that shrinking sea ice caused by climate change could reduce the polar bear population by two-thirds within fifty years. Polar bears have since become a powerful symbol of the overwhelming threats to species and ecosystems posed by global warming.

Critical habitat under the ESA refers to the area containing the biological and physical features essential to the recovery of listed species. While the Bush Administration was extremely reluctant to designate adequate critical habitat for threatened and endangered species, the Obama Administration has indicated that it is much more willing to follow the letter of the law in delineating habitat that needs special legal protection. 

Now the bad news: an …

May 19, 2010 by Dan Rohlf

As millions of gallons of oil continue to pour into the Gulf of Mexico, the Washington Post and New York Times reported that the Minerals Management Service (MMS) – the agency within the U.S. Department of Interior that oversees offshore oil and gas leasing and development – mostly ignored some of the country’s most important environmental laws when it gave the green light to Deepwater Horizon and other offshore drilling.

The Endangered Species Act requires federal agencies to consult with the National Marine Fisheries Service (NMFS) when they take or approve actions that may adversely affect species listed as threatened or endangered. Though MMS has acknowledged that oil and gas drilling is likely to adversely affect protected sea turtles, sperm whales, and Alabama sturgeon, the Post and Times reported that the agency failed to consult with NMFS prior to issuing permission for the Deepwater Horizon drilling. The …

March 23, 2010 by Dan Rohlf

A small group of Senate Republicans – most from conservative western states – have introduced a bill (available via E&E, subs. required) that would require the federal government to annually disclose a list of attorney fee awards it has given to allow public interest plaintiffs to recover expenses when they have successfully challenged decisions of federal agencies. Introduction of the bills was prodded by allegations from Karen Budd-Falen, a Wyoming-based attorney whose firm represents a variety of resource user groups, that environmental organizations are receiving “billions” of dollars from the federal government through attorney fee awards authorized under fee-shifting provisions of federal law, as well as through the Equal Access to Justice Act (EAJA).

EAJA and similar fee-shifting statutes play a key role in allowing public interest organizations to challenge decisions by the federal government in court. Fee awards go to attorneys who successfully litigate a case against a …

March 16, 2009 by Dan Rohlf

The Associated Press reported last week that the Commerce Department’s inspector general is looking into who leaked a draft of the Bush Administration’s plans to prevent federal agencies from considering the impacts of greenhouse gas emissions on species protected under the Endangered Species Act (ESA). Oklahoma Senator James Inhofe, expressing concern over what he termed “a serious abdication of duty” by the government official or officials who leaked the document to the National Wildlife Federation last summer, called for the investigation. The draft changes to ESA regulations surfaced in August 2008, revealing the outgoing administration’s efforts to weaken the Act’s Section 7 consultation process by allowing agencies to ignore impacts to endangered species “manifested through global processes,” a clear reference to climate change.

The Department of Interior finalized the regulatory revisions just in time for them to go into effect before the new …

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