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Environmental Law

: ESA Blawg

New wildlife issues surfacing in Gulf, environmental advocates resist wind energy, and Endangered Species Act challenges mount, nationwide.

By Keith Rizzardi

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Deepwater Horizon was not “reasonably likely to occur.” ESA blawg readers already knew, as a legal matter, that FWS must have reached that conclusion when it allowed the project to move forward. See prior ESA blawg and Wired News. Recent news coverage confirmed the legal conclusion in its story citing a September 2007 U.S. Fish and Wildlife Service memo stating that large oil spills from the Gulf of Mexico projects were "low-probability events that weren't likely to affect brown pelicans, sea turtles and other animals with Gulf Coast habitats.” See New York Times coverage by Leslie Kaufman.

Low risk? Not for the turtles burned alive when surface oil is incinerated as part of the Deepwater Horizon response effort. See MyFoxTampaBay (photo above by Pinar Ozgar from The Atlantic. And Sea Turtle Restoration Project even reported that boats were being prevented from saving the turtles. Protests followed: one Facebook page sought to earn a million subscribers. Only days ago, environmentalists sued BP for the activity. See Business Week. The lawsuit proved effective. In a proposed settlement, BP said it will allow wildlife biologists onboard clean-up vessels to spot and remove ensnared turtles. See, Christian Science Monitor.

The sea turtle story may just be the first of many similar tales. Due to the oil spill, NRDC plans to file a lawsuit related to sperm whales, and the Center for Biological Diversity filed a petition to list the bluefin tuna as a threatened species. See New York Times. Whale sharks, already a threatened species, have also been seen swimming through the BP oil spill. See DeepTypeFlow and Discovery news. And The Boston Globe worries about the piping plover, a threatened migratory shorebird species that nests in the Gulf.

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While the oil in the Gulf flames, Endangered Species Act news elsewhere in the nation has often sat on the back burner. But some important stories are cooking.

For starters, anyone who thinks that greener energy can avoid disastrous oil-related decisions, and its wildlife consequences, will soon scratch that idea. Environmentalists already sued the U.S. Fish & Wildlife Service for its approval of the the nation's first offshore wind energy project, allegedly for failure to comply with the Endangered Species Act process for Roseate Terns, Piping Plovers and the North Atlantic Right Whale. See LA Times. Sadly, the Bush Administration's FWS did it to themselves again, and some groups claim the lawsuit stems from the January 2010 Interior Inspector General report that the plaintiffs say “found that the agencies reviewing the project’s environmental impact study were unnecessarily rushed in their reviews because of the applicant’s desire to complete the environmental review prior to the exodus of the Bush Administration.” See EarthTechling.com. A proposed wind farm in Western Maryland faces similar opposition. See The Baltimore Sun.

Offering some historical perspective on how much the Endangered Species Act has matured, The New York Times looked back on the twenty years since the Northern Spotted Owl earned a place as a listed species. But less charismatic species get attention too. Another New York Times story reported that the federal government proposed nearly $3 million in fines against the City of Birmingham, Ala., over the death of 12,000 watercress darters, one of the largest fish kills in the history of the Endangered Species Act.

West coast fisheries remain in the news as well. MercuryNews.com notes that drought-ravaged Klamath farmers, whose water supplies compete with salmon and sucker fish, are finally getting an increase in water deliveries. A similar competition between delta smelt and regional irrigation earned a central role in the recent debate between California Senate candidates. See ContraCostaTimes.com

Offering some much needed optimism, Wired.com, citing an newly produced USGS map of the ecosystems of the United States, hoped that wildlife managers had a new tool -- and new tools are certainly needed. An AP News story by Dan Joling on polar bears led with the statement that "The iconic bears are threatened with extinction, and so far nothing much is being done." Then again -- as frequently noted here at ESA blawg -- the story also recognized that listing a species as threatened or endangered, due to climate change, will solve nothing, because the ESA lacks any meaningful tools to address human induced but global scale climate issues.

As for the list of new lawsuits? The Center for Biological Diversity sued FWS over the sage grouse, and filed a notice of intent to sue related to the plains bison, striped newt, Berry Cave salamander, Puerto Rican harlequin butterfly, Ozark chinquapin, western gull-billed tern and Mohave ground squirrel. For several of these rare species, the agency has missed legal deadlines by years.. WildEarth Guardians sued over the Mexican Spotted Owl too.

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P.S. I just returned from a trip to Alaska, and must agree with the recent HuffingtonPost.com article noting the abundance of bald eagles. A belated Happy Fourth of July to all my readers!

Full post as published by ESA Blawg on July 05, 2010 (boomark / email).