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Environmental Law

: ESA Blawg

ESA news: two major lawsuits announced on pesticide regulation and military effects on right whales; while two states are becoming regulatory battlegrounds.

By Keith Rizzardi

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Alaska wants less regulation based on the Endangered Species Act -- much less. According to the JuneauEmpire.com, Alaska's Attorney General has budgeted $1 million next year to pay for a full-time attorney to focus on the Endangered Species Act, noting that regulations protecting polar bears, seals, greatly increase the cost of doing business in the state.

The Center for Biological Diversity, of course, disagrees. CBD announced its plans to file a new lawsuit against EPA, alleging that 400 different pesticides are insufficiently regulated, harming 887 endangered species. See LA Times and Center for Biological Diversity press release. CBD's notice of intent to sue says EPA must engage in Endangered Species Act consultation with the wildlife agencies within the next 60 days -- an obvious impossibility given the scope of the case and numbers of variables. Nevertheless, even though EPA already has an Endangered Species Protection Program for pesticides, it previously settled a similar lawsuit, and established new regulations, related to pesticide impacts on salmonid species in the Pacific Northwest. See NOAA information page. If this lawsuit is successful, it will inevitably increase the difficulty of pesticide approvals. In fact, a recent NOAA biological opinion found that the registration of carbaryl and carbofuran was likely to jeopardize the continued existence of those salmonid species. See also, prior ESA blawg, and pesticide threats case study.

The pesticide lawsuit follows a successful, savvy and and well-used pattern: (1) strategic use of the ESA by environmental groups (2) to obtain a judicial mandate (3) changing or enjoining a previously unregulated or lesser-regulated activity (4) to benefit protected species, and, finally, (5) repeat as necessary. The U.S. Navy has experienced the same pattern. When the first lawsuits were filed by environmentalists seeking to stop military actions due to effects on protected species, it raised eyebrows and ire. See prior ESA musing, and prior ESA caselaw summary. Those lawsuits are now old news. Earlier this week, environmentalists filed a lawsuit against the U.S. Navy over its decision to build an Undersea Warfare Training Range next to the South Georgia and North Florida waters serving as the only known calving ground (and critical habitat) for the critically endangered North Atlantic right whale. See ENS Newswire. The lawsuit was predictable, based on the small numbers for this species -- 350 animals -- and its status as endangered for over 35 years.

This photo of a North Atlantic right whale pod comes from the Jacksonville (JAX) Range Complex Environmental Impact Statement. Recognizing that Naval warfare training activities are underway in and adjacent to the critical habitat area during the calving season, the EIS discusses the Navy's measures taken to protect right whales, including: on-board lookouts, using the slowest safe speed that is consistent with essential mission, training, and operations, maneuvering to keep at least 500 yards from any observed whale, funding aerial surveys during the calving season as part of the Early Warning System, and comprehensive training related to whale protection.

Given the right whale lawsuit, and other regional news, even some usually green-minded Floridians may sympathize with the frustrated sailors and Alaskans as the Endangered Species Act continues to increase Florida's regulatory burdens. In addition to the new right whale lawsuit discussed above, recent ESA-related events in Florida include the pending petition on Florida panther critical habitat, ongoing litigation over the Cape Sable seaside sparrow, potential listing of the gopher tortoise, listing of the small tooth sawfish and critical habitat, a decision not to revise staghorn coral critical habitat, and revising manatee critical habitat. Now, based on this week's news, environmental groups would like to add 84 more species to the list. WildLaw in St. Petersburg petitioned the Interior Department and the U.S. Fish and Wildlife Service to list the Florida bonneted bat. See NaplesNews.com and prior ESA blawg. The Center for Biological Diversity is demanding a decision from NOAA, and threatening litigation, on the listing status of 83 species of coral. See Washington Post.

And one final Florida-centric thought: with the recent cold snap stunning an astounding 5000 sea turtles, and the species continuing habitat decline, more litigation related to those species may be coming soon. See OnEarth.

Full post as published by ESA Blawg on January 30, 2010 (boomark / email).