Environmental groups see the Interior Department’s proposed protection of the emperor penguin—a bird that exists only in Antarctica—under the Endangered Species Act as leverage against future U.S. oil and gas development.
Legally, however, any federal effort to use the penguin’s plight to completely block an oil project faces long odds, attorneys say.
It will be challenging to link an oil and gas field contributing to climate change “to any measurable or quantifiable impact on a species in a way that the ESA regulates species,” said Brooke Marcus, a natural resources lawyer and partner Nossaman LLP in Austin.
Interior’s U.S. Fish and Wildlife Service announced Tuesday it is proposing to list the imperiled emperor penguin as threatened under the ESA because human-caused climate change is destabilizing and catastrophically collapsing Antarctic ice shelves, crushing penguin breeding colonies and killing chicks.
Though the potential penguin listing is unlikely to scuttle an oil project, it does provide agencies with a “tangible hook” to carefully consider climate change in their environmental reviews of certain projects, and failure to do so will give opponents more fuel for a possible court challenge, Marcus said.
For example, if Interior in a future administration failed to consider the effects of climate change in their environmental analyses before greenlighting an oil drilling project, environmental groups could point to that, in addition to the penguin and other ESA listings, as evidence to convince a court to force the agency to take a closer look at the impact of the project, creating lengthy delays.
Survival Linked to Emissions
Another “hook” for groups using the ESA to challenge oil and gas projects in court is the act’s requirement that Fish and Wildlife consider cumulative impacts to a species, said Mark Squillace, a environmental law professor at the University of Colorado-Boulder.
“It is these cumulative impacts from fossil fuel development that threaten species like the polar bear and emperor penguin,” Squillace said. “The FWS cannot ignore jeopardy to the species or a taking of a species.”
And the penguin is most likely to survive if human greenhouse gas emissions are drastically cut, the service said.
Listing the penguin as threatened could provide Interior with “tools” to scrutinize large U.S. oil projects that emit climate-changing greenhouse gases, leading to the decline in the penguin’s habitat, said Jacob Malcom, director of the Center for Conservation Innovation at the environmental group Defenders of Wildlife.
“They could say, ‘No, we actually believe the science is strong enough that we can connect a large scale oil and gas permit to threatening this penguin down on the other side of the Earth,’” Malcolm said.
But the ESA, including a possible penguin listing, won’t be a useful tool against oil and gas unless Interior changes its long-standing approach to the way it implements the act, said Murray Feldman, a partner at Holland & Hart LLP in Boise.
Since Fish and Wildlife listed the polar bear as threatened in 2008, the agency has considered general diffuse contributions to overall GHG emissions unable to be regulated as prohibited harassment or killing of threatened species, Feldman said.
The Trump administration changed ESA regulations, limiting what’s considered an “effect” of a federal action, such as oil and gas permitting. If the consequence of an action is so distant or only happens after a lengthy chain of events, it’s not considered an effect under the new rules.
Fish and Wildlife isn’t empowered or authorized under the ESA to regulate projects that emit greenhouse gases, Feldman said.
Urgency of Emissions Cuts
The proposed listing helps bring attention to the plight of the species and to the importance of “low-emission climate scenarios,” Fish and Wildlife spokeswoman Christina Meister said via email.
Federal agencies, including other Interior bureaus, are required under the ESA to consult with the service to find ways to reduce threats that agency proposals—such as large energy development projects on federal land—may pose to imperiled species.
Though the required consultation rarely kills a project, it often forces a project to be reduced in size or impact, said Sarah Uhlemann, a senior attorney for the Center for Biological Diversity, which petitioned the Fish and Wildlife Service to list the penguin in 2011.
“There is no reason that greenhouse emissions should be omitted from consideration in these reviews—we are in a climate emergency and all federal agencies should roll up their sleeves and look for ways to reduce the greenhouse pollution from their approvals,” Uhlemann said.