Wednesday, May 28, 2008
Regulating greenhouse gases through the polar bear
The great global law firm of Latham & Watkins (of which I am a grateful alumnus) has written a "client alert" describing the impact of the Fish and Wildlife Service's designation of the polar bear as "endangered" by dint of climate change. Money quote:
Historically, the listing of a species under the ESA only impacts activities and projects in the area in which the species is located—potentially affecting local development or increasing local conservation requirements. Some environmental advocates, however, assert that for listed species impacted by global climate change, this traditional construct is no longer appropriate.
Environmental groups and project opponents are demanding ESA consultation for agency decisions that may result in greenhouse gas (GHG) emissions that potentially could affect species at risk due to climate change factors, regardless of the location of the emissions. Guidance issued by the FWS rejects such consultation requirements, but this guidance also undoubtedly will face challenges by environmental groups.
The client alert has the usual citations and footnotes for those of you interested in digging more deeply.
Here's a risk-free prediction to consider: Judges appointed by Barack Obama will be far more willing, on average, to entertain vexatious greenhouse gas litigation than those serving today.
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