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Climate Groups Use Endangered Species Act to Try to Stop Drilling

WASHINGTON — Oil burned from a well drilled in Wyoming is adding to the carbon dioxide in the atmosphere that is heating the planet and destroying coral reefs in Florida, polar bears in the Arctic and monk seals in Hawaii. But drawing a direct line from a single source of pollution to the destruction of a species is virtually impossible.

Environmentalists want the government to try.

On Wednesday, a coalition of organizations sued the Biden government for consistently failing to account for the damage caused to endangered species by emissions from oil and gas drilling on public lands.

If the coalition succeeds in invoking protections under the Endangered Species Act, more than 3,500 drilling permits issued during Biden’s administration could be revoked and future permits could become much more difficult.

“The science is now, unfortunately, very clear that climate change is catastrophizing in every way for the planet, including endangered species,” said Brett Hartl, director of government affairs at the Center for Biological Diversity. It is leading the lawsuit filed with the US District Court for the District of Columbia.

“We need to stop taking the autopilot-style approach to leasing fossil fuels on public lands,” he said.

A spokesman for the Interior Department declined to comment on the matter.

Oil and gas industry officials noted that for every drilling permit issued, the government already conducts environmental assessments and opponents have multiple avenues to challenge decisions. Industry officials said the lawsuit was a loophole to curtail fossil fuel development and would hurt the economy.

“They won’t be happy until the federal oil and natural gas sector is completely shut down, but that option is not supported by the law,” said Kathleen Sgamma, president of the Western Energy Alliance, which represents oil and gas companies.

“They’re trying to use the courts to deprive Americans of energy and drive up prices because they can’t convince Congress to change the law,” she said. “Shutting down federal oil and natural gas does nothing to address climate change, it just shifts production to private lands or abroad.”

The International Energy Agency, the world’s largest energy agency, has said countries must stop developing new oil and gas fields and building new coal-fired power plants if global warming is to stay within relatively safe limits.

The lawsuit is the latest skirmish by environmentalists who want to keep fossil fuels “in the ground” and force President Biden to fulfill his campaign promise to end new leases for oil and gas drilling. Mr. Biden decided in the early days of his presidency to suspend new leases, but legal challenges from Republican-led states and the oil industry have thwarted that effort.

Next week, the Biden administration is expected to hold its first onshore lease sale for drilling on public lands in Colorado, Montana, North Dakota, Nevada, Utah, New Mexico and more than 131,000 acres in Wyoming alone. The government has also opened 80 million acres in the Gulf of Mexico for drilling.

The case faces a long shot, but experts called it an ambitious effort that could force the government to reconsider how it evaluates the potential for climate damage from each new drilling permit.

The lawsuit seeks to invalidate decisions based on a 2008 legal opinion written by David Bernhardt, who was a chief adviser to the Department of the Interior under President George W. Bush and would later lead the agency in the Trump administration. Mr Bernhardt stated that the Department of the Interior has no obligation to study the impact on an endangered plant or animal of a proposed action that would add carbon uptake to the atmosphere.

“Science cannot say that a small, accelerating global temperature rise that could be caused by an action under consideration would manifest itself in the location of a listed species or its habitat,” Mr Bernhardt wrote at the time.

That stance still holds for the most part, scientists and environmentalists said. But they also said it’s an impossible standard — like requiring knowledge about which pack of cigarettes caused a smoker’s lung cancer.

“It’s totally the wrong way to think about it,” said John J. Wiens, a professor of ecology and evolutionary biology at the University of Arizona. He and other researchers published a study: in the Proceedings of the National Academy of Sciences in 2020, which found that a third of plant and animal species could disappear in 50 years as a result of climate change.

“More emissions, more warming endangers species,” said Dr. Whose. “It doesn’t matter if we don’t know that this particular resource in Wyoming led to extinction. We know what the general pattern is.”

Jessica A. Wentz, a senior fellow at Columbia University’s Sabin Center for Climate Change Law, said a clear line from pollution to hazard is required “a common misrepresentation of climate science that is often used to explain climate change passivity.” to justify. .”

The question of whether climate change increases the risk of extinction for the green sea turtle, Florida’s Key deer and other species has been resolved, she said. The real test would have to be whether the proposed drilling would add such a significant amount of greenhouse gases to the atmosphere to affect a species, Ms Wentz said.

The lawsuit notes that according to analysis by the Bureau of Land Management, oil and gas production from public lands emits 9 percent of the United States’ greenhouse gases and 1 percent of global emissions. The suit estimates that the roughly 3,500 drilling permits approved under the Biden administration will release as much as 600 million tons of greenhouse gases over the lifetime of the wells.

Another law, the National Environmental Policy Act, obliges the government to study the effects of proposed projects on climate change, but does not oblige an agency to refuse a bridge, pipeline or highway because of the consequences.

However, under the Endangered Species Act, there is a stronger suspicion that the agency should reconsider the project if it is determined that a project endangers an endangered plant or animal, experts said.

So requiring the government to simply understand the effects of rising emissions on a species could fundamentally delay or block drilling permits, environmental groups say.

Mr. Bernhardt said in an interview that his legal opinion and an underlying memo from the director of the United States Geological Survey “were written with an incredible amount of work and understanding of the law and the science.”

Mark D. Myers, who was director of the USGS in 2008 and wrote a memo — outlining the challenges of linking emissions to their impacts — that formed the basis for Mr. Bernhard’s legal opinion, agreed. . At the time, the government vetted the opinion with top scientists across the agency, he said.

Mr Myers said he believes fossil fuel emissions pose a serious threat to the planet. But he described the Endangered Species Act as a complex law and the “wrong vehicle to effect a change in our global emissions patterns.”

With the midterm elections approaching and Republicans blaming Democrats for record high gas prices, the case could force the Biden administration into another high-profile debate about the future of drilling that it doesn’t like to be in on, Holly said. D. Doremus, an environmental law. professor at the University of California, Berkeley.

“Right now, it’s a pretty awkward time for any government to say, ‘We’re reducing the availability of fossil fuels,'” she said.

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