Murkowski Comments on Polar Bear Decision

Alaska Senator Says Questions Remain on implementation

WASHINGTON, D.C. – U.S. Senator Lisa Murkowski, R-Alaska, today sent a letter to Secretary of the Interior Ken Salazar thanking him for his decision on polar bears, an issue Murkowski has pressed Interior on. The letter also seeks clarification about how this decision will work in connection with Salazar’s recent decision to revoke a previous regulation on Endangered Species Act (ESA) consultation.
The U.S. Department of Interior on Friday announced it was leaving unchanged the previous administration’s rule regarding listing of the polar bear under the ESA in regard to regulation of activities that occur outside and within the polar bear’s habitat.
Murkowski said leaving the rule in place was the correct decision, but said questions remain as to how Interior will apply the rule in light of its decision to reject a separate rule clarifying consultation requirements under the ESA, which provided that contributions to “global processes” such as climate change should not subject individual projects to extensive review by U.S. Fish and Wildlife Service and the National Marine Fisheries biologists.
“I’m pleased that the department has chosen to retain the existing polar bear listing rule, which provides rational measures for the protection of polar bears within their natural range,” Murkowski said.
While the administration retained the existing exemption for oil and gas and subsistence activities in the Arctic, it left open the question of whether carbon-emitting projects outside the polar bear’s range would be subject to potentially time consuming and costly federal agency review as to their impact on the polar bear.
The polar bear listing rule provides that any federal agency that intends to engage in an agency action that “may affect” polar bears must first consult with Fish and Wildlife and NMFS “regardless of the location of the agency action.” 
Under this rule, covered actions could include any federal funding or permission for construction of carbon-producing facilities, such as factories, hospitals and schools, anywhere in the country. This consultation requirement, if fully subject to the “citizen suit” provisions under the ESA, means that failure to consult with agency biologists could result in projects being dragged into court.
In her letter, Murkowski seeks clarification on how Interior would treat greenhouse-gas emitting projects outside the polar bear’s range, as well as at what level federal agencies will deem consultation necessary for federal actions that “may affect” the species?
The previous administration decided to issue a special rule clarifying that small, dispersed contributors to greenhouse gas emissions would not require consultation under the ESA in order to avoid the threat of frivolous lawsuits being used to shutdown development anywhere in the county.
“I appreciate the Obama administration’s position that the ESA should not be used to address global climate change, but I remain concerned about the ability of this rule to be misused through third-party lawsuits to block important projects anywhere in the country,” Murkowski said.