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global warming and raised the specter of greenhouse gas regulation, none of the cli-
mate deniers or fossil fuels industry associations that have actively opposed virtually
all attempts at climate-related regulation in the United States participated in the pro-
cess. The end result was a ¬nal regulation of signi¬cant legal effect promulgated by a
federal agency under an administration otherwise openly hostile to any greenhouse

Center for Biological Diversity, Petition to List Acropora Palmata (Elkhorn Coral), Acropora
72

Cervicornis (Staghorn Coral), and Acropora Prolifera (Fused-Staghorn Coral) as Endangered
Species Under the Endangered Species Act (2004), available at http://www.biologicaldiversity.org/
swcbd/SPECIES/coral/petition.pdf (last visited Dec. 1, 2006). The third species mentioned in the
Petition, fused-staghorn coral, was determined by NMFS to be a hybrid of the elkhorn and staghorn
corals and therefore not further considered for listing.
Id.
73

Id. at 62“67.
74

Listing Endangered and Threatened Wildlife and Plants and Designating Critical Habitat; 90-Day
75

Finding on a Petition to List Elkhorn Coral, Staghorn Coral, and Fused-Staghorn Coral, 69 Fed.
Reg. 34,995 (June 23, 2004).
Endangered and Threatened Species; Proposed Threatened Status for Elkhorn Coral and Staghorn
76

Coral, 70 Fed. Reg. 24,359 (May 9, 2005).
Endangered and Threatened Species: Final Listing Determinations for Elkhorn Coral and Staghorn
77

Coral, 71 Fed. Reg. 26,852 (May 9, 2006); 50 C.F.R. § 223.102.
NMFS, in processing listing petitions, has generally shown less disregard for statutory deadlines than
78

FWS. See discussion of polar bear listing process, infra. Still, the agency™s listing of the corals in just
over two years was surprising given the agency™s recent history of initially denying almost all listing
petitions. See Brendan R. Cummings, Unful¬lled Promise: Using the ESA to Protect Imperiled Marine
Wildlife, 12 Wild Earth 62 (2002).
71 Fed. Reg. 26,852, 26,853“55 (response to comments).
79
Biodiversity, Global Warming, and the United States 153


gas regulation and unwilling, to that point, to even acknowledge of the reality of
anthropogenic global warming.
The listing of the corals transpired without signi¬cant controversy for several rea-
sons. First, given the catastrophic declines in the abundance and distribution of
elkhorn and staghorn corals, there was no real scienti¬c dispute as to their endan-
germent. Second, the decline in the species was multicausal; NMFS did not need
to invoke or endorse the science of global warming or rely on predictions of future
warming to ¬nd the species imperiled. Third, the listing simply went unnoticed; in
contrast to the high-pro¬le polar bear listing process, the listing of the corals never
attracted signi¬cant media attention, and hence entities that may have otherwise
mobilized to oppose the rule never became aware of it.
The language in the listing rule itself is a rich example of the actions of scien-
tists operating within the constraints of an agency not allowed to acknowledge the
existence of global warming. The phrase “global warming” appears nowhere in
the 10,000-word ¬nal listing rule. Nor does mention of “greenhouse gases” occur.
The phrase “climate change” appears only twice, both times in reference to literature
submitted by the public rather than as an actual phenomenon relevant to the
rulemaking.80 Instead, the phrase “elevated sea surface temperature” is sprinkled
throughout the document, and is used a total of eleven times with no ascription of
causal mechanism(s). One example speaks volumes regarding NMFS™s con¬‚icted
position:

The major threats to these species™ persistence (i.e., disease, elevated sea surface
temperature, and hurricanes) are severe, unpredictable, have increased over the
past 3 decades, and, at current levels of knowledge, the threats are unmanageable.81

Thus, while not acknowledging any anthropogenic role in these processes, NMFS
essentially declares that the impacts of global warming are “unmanageable.” In other
words, the agency seems to be admitting that current climate policy is nowhere near
adequate to address the problem. While NMFS said “unmanageable,” “unmanaged”
would be a more appropriate term, as the failure to address global warming is a
result of policy decisions rather than because the problem itself is (at least as of yet)
impossible to manage.
The closest NMFS comes in the rule to acknowledging the existence of global
warming as an anthropogenic phenomenon, is a sentence mentioning carbon diox-
ide “levels” (not “emissions”):

Along with elevated sea surface temperature, atmospheric carbon dioxide levels
have increased in the last century, and there is no apparent evidence the trend will
not continue.82
71 Fed. Reg. at 26,855 (“Several comments and journal articles addressing climate change and coral
80

bleaching were received” and “In addition to the comments relating to the proposed listing, the
following were also received: (1) peer-reviewed journal articles regarding climate change.”)
71 Fed. Reg. at 26,858.
81

Id.
82
Brendan R. Cummings and Kassie R. Siegel
154


Again, the voice is passive, and there is no mention of a human role in the process,
but there is an implicit acknowledgment that existing national and international
policies are not suf¬ciently addressing the problem.
Ultimately, what matters from the listing of the corals is not the language choices
by NMFS, but the fact that the species are now listed under the ESA and one of
the strongest of U.S. environmental laws can now be turned toward the problem
of greenhouse gas emissions and global warming. The consequences of the coral
listing are explored further in Section 1.4.


1.3. Case Study II: Polar Bear

1.3.1. The Arctic as a Global Warming Hot Spot
Global warming is already having pronounced impacts in the Arctic. In November
2004, a comprehensive scienti¬c report commissioned by the Arctic Council, the
Arctic Climate Impact Assessment (ACIA), painted a stark picture for the future
of the region. In Alaska and western Canada, winter temperatures have already
increased by as much as 3“4—¦ C in the past ¬fty years.83 Over the next 100 years,
under a moderate emissions scenario, annual average temperatures are projected to
rise an additional 3“5—¦ C over land and up to 7—¦ C over the oceans. Winter temper-
atures are projected to rise by an additional 4“7—¦ C over land and 7“10—¦ C over the
oceans.84
In the years subsequent to the ACIA report, both the observed and projected
impacts to the Arctic, and particularly to sea ice, have been even more pronounced.
The record minimum summer sea-ice extent set in September 200585 was smashed
in September 2007 when sea-ice extent fell to 1.63 million square miles, about
one million square miles below the average minimum sea-ice extent between 1979
and 2000,86 and 50% lower than conditions in the 1950s to the 1970s.87 The 2007
minimum was lower than the sea-ice extent most climate models predict would not
be reached until 2050 or later.88


Susan Joy Hassol, Impacts of a Warming Arctic: Arctic Climate Warming Assessment (2004),
83

at 22, available at http://amap.no/acia/ (last visited Dec. 1, 2006).
Id. at 26.
84

National Snow and Ice Data Center, Arctic Sea Ice Shrinks as Temperatures Rise, Oct. 3, 2006,
85

available at http://www.nsidc.org/news/press/2006_seaiceminimum/20061003_pressrelease.html (last
visited Dec. 1, 2006).
National Snow and Ice Data Center (NSIDC), Overview of Current Sea Ice Conditions, Sept. 7, 2007,
86

available at http://www.nsidc.org/news/press/2007_seaiceminimum/20070810_index.html (last visited
May 26, 2008).
Julienne Stroeve et al., Arctic Sea Ice Extent Plummets in 2007, 89 Eos 13“20 (2008).
87

Id.; Julienne Stroeve et al., Arctic Sea Ice Decline: Faster than Forecast, 34 Geophysical Res. Letters
88

L09501, doi:10.1029/2007GL029703 (2007); Endangered and Threatened Wildlife and Plants, Deter-
mination of Threatened Status for the Polar Bear (Ursus maritimus) throughout Its Range, supra note
1, at 28,233.
Biodiversity, Global Warming, and the United States 155


Both the extent and thickness of winter sea ice are also declining, with a record
minimum-low winter sea ice extent in March 2006.89 Relatively thin, ¬rst-year ice
covered 72 percent of the Arctic Basin, including the region around the North Pole in
March 2008, considerably exceeding the ¬rst-year ice cover of March 2007.90 Since
very little ¬rst year ice survives the summer melt season (in 2007 only 13 percent
of ¬rst year ice survived), more ¬rst-year winter ice results in lower sea-ice cover
in the following summer.91 The September minimum sea-ice extent in 2008 was
the second lowest year on record.92 Some leading sea-ice researchers now believe
that the Arctic could be completely ice free in the summer as early as 2012.93 Polar
bears face a grim future even under relatively optimistic scenarios of sea-ice decline,
and as complete loss of summer sea ice within a decade or so becomes increasingly
likely, their future is tenuous indeed.


1.3.2. The Polar Bear in a Warming Arctic
The polar bear (Ursus maritimus) is completely dependent upon Arctic sea-ice
habitat for survival. Polar bears need sea ice as a platform from which to hunt
ringed seals and other prey, to make seasonal migrations between the sea ice and
their terrestrial denning areas, and for other essential behaviors such as mating.94
Unfortunately, the polar bear™s sea-ice habitat is quite literally melting away.
Canada™s Western Hudson Bay population, at the southern edge of the species™
range, has been the ¬rst to show the impacts of global warming.95 Breakup of the
annual ice in Western Hudson Bay is now occurring on average 2.5 weeks earlier
than it did thirty years ago.96 Earlier ice breakup is resulting in polar bears having
less time on the ice to hunt seals. Polar bears must maximize the time they spend
on the ice feeding before they come ashore, as they must live off built-up fat reserves
for up to eight months before ice conditions allow a return to hunting on the
ice. The reduced hunting season has translated into thinner bears, lower female

National Snow and Ice Data Center, Arctic Sea Ice Extent at Maximum Below Average, Thin, available
89

at http://www.nsidc.org/arcticseaicenews/2008/040708.html (last visited May 26, 2008).
Id.
90

Id.
91

National Snow and Ice Data Center, Arctic Sea Ice Down to Second-Lowest Extent; Likely Record-Low
92

Volume, available at http://www.nsidc.org/news/press/20081002_seaice_pressrelease.html (last visited
Mar. 11, 2009).
Seth Borenstein, Arctic Sea Ice Gone in Summer within Five Years?, Associated Press, Dec. 12, 2007,
93

available at http://news.nationalgeographic.com/news/pf/33860636.html (last visited May 26, 2008);
Jonathan Amos, Scientists in the US Have Presented One of the Most Dramatic Forecasts Yet for the
Disappearance of Arctic Sea Ice, BBC News, Dec. 12, 2007, available at http://news.bbc.co.uk/go/pr/fr/-
/2/hi/science/nature/7139797.stm (last visited May 26, 2008).
Andrew E. Derocher, Nicholas J. Lunn & Ian Stirling, Polar Bears in a Warming Climate, 44
94

Integrated Comp. Biology 163 (2004).
Id.; Jon Aars, Nicholas J. Lunn & Andrew E. Derocher, Polar Bears: Proceedings of the 14th
95

Working Meeting of the IUCN/SSC Polar Bear Specialist Group, 20“24 June 2005, Seattle,
Washington, USA 44“45 (2006).
Id.
96
Brendan R. Cummings and Kassie R. Siegel
156


reproductive rates, and lower juvenile survival rates.97 At the time of the ACIA
report, population declines were not yet reported for Hudson Bay. However, polar
bear scientists predicted that if sea-ice trends continue, most female polar bears in
the Western Hudson Bay population will be unable to reproduce by the end of the
century, and possibly as early as 2012.98
While Hudson Bay is showing the earliest signs of global warming™s impacts on
polar bears, the consequences of future sea-ice reductions for polar bears elsewhere
will also be severe. A 2004 peer-reviewed analysis looking at all aspects of global
warming™s impacts on the polar bear by three of the world™s foremost experts on the
species concluded that “it is unlikely that polar bears will survive as a species if the
sea ice disappears completely as has been predicted by some.”99
The ACIA comes to a similar conclusion: “polar bears are unlikely to survive
as a species if there is an almost complete loss of summer sea-ice cover, which is
projected to occur before the end of this century by some climate models.”100
Even short of complete disappearance of sea ice, projected impacts to polar bears
from global warming will affect virtually every aspect of the species™ existence:

r The timing of ice formation and breakup will determine how long and how
ef¬ciently polar bears can hunt seals. A reduction in the hunting season caused
by delayed ice formation and earlier breakup will mean reduced fat stores,
reduced body condition, and therefore reduced survival and reproduction.
r Reductions in sea ice will in some areas result in increased distances between
the ice edge and land. This will make it more dif¬cult for female bears that den
on land to reach their preferred denning areas. Bears will face the energetic
trade-off of either leaving the sea ice earlier when it is closer to land or traveling
farther to reach denning areas. In either case, the result is reduced fat stores
and likely reduced survival and reproduction.
r Reductions in sea-ice thickness and concentration will likely increase the ener-
getic costs of traveling as moving through fragmented sea ice and open water is
more energy intensive than walking across consolidated sea ice.
r Reduced sea-ice extent will likely result in reductions in the availability of
ice-dependent prey such as ringed seals, as prey numbers decrease or are con-
centrated on ice too far from land for polar bears to reach.
r Global warming will likely increase the rates of human-bear interactions, as
greater portions of the Arctic become more accessible to people and as polar
bears are forced to spend more time on land waiting for ice formation. Increased
human-bear interactions will almost certainly lead to increased polar bear
mortality.

97 Id.
98 Derocher, supra note 94, at 165.
at 163.
99 Id.
100 Hassol, supra note 83, at 58.
Biodiversity, Global Warming, and the United States 157

r The combined effects of these impacts of global warming on individual bears™
reproduction and survival are likely to ultimately translate into impacts on
polar bear populations. Impacts will be most severe on female reproductive
rates and juvenile survival. In time, reduction in these key demographic factors
will translate into population declines and extirpations.101

In sum, changes in sea-ice extent, thickness, movement, fragmentation, location,
duration, and timing will have signi¬cant and adverse impacts on polar bear feeding,
breeding, and movement. Such impacts will likely result in reduced reproductive
success and higher juvenile mortality, and in some cases increased adult mortality.
If global warming continues unabated, these impacts will ultimately lead to global
extinction of the species.
In response to the increasingly recognized threat of global warming on the polar
bear, in 2004 the Center for Biological Diversity began preparation of a petition
seeking listing of the species under the ESA. Since the petition was ¬led, new reports
of polar bear drownings,102 cannibalism,103 starvation,104 and population decline105
have been published. The status of the polar bear has grown more dire, and with it,
the need for protection all the more compelling.


1.3.3. From Petition to Listing
On February 16, 2005, the Center for Biological Diversity submitted a Petition to
FWS to list polar bears as a Threatened or Endangered species under the ESA.106 The
170-page Petition discussed the status of the species, the science of global warming,
and the observed and projected impacts of global warming on the polar bear™s sea-
ice habitat.107 The Petition argued that the polar bear was endangered or likely to
become so in the foreseeable future given global warming trends and the inadequacy
of U.S. and international measures to combat greenhouse gas emissions.108
In contrast with the coral petition, where the case for protected status could be
made on already documented declines, the decline of the polar bear, at least at
the time of the Petition, was something projected for the future. Other than for
the Western Hudson Bay population, studies documenting impacts to polar bears

101 Derocher, supra note 94; Hassol, supra note 83, at 58.
102 Charles Monnett & Jeffrey S. Gleason, Observations of Mortality Associated with Extended Open-water

Swimming by Polar Bears in the Alaskan Beaufort Sea, 29 Polar Biology 681 (2006).
103 Steven C. Amstrup et al., Recent Observations of Intraspeci¬c Predation and Cannibalism among Polar

Bears in the Southern Beaufort Sea, 29 Polar Biology 997 (2006).
104 Eric V. Regehr, S.C. Amstrup & Ian Stirling, Polar Bear Population Status in the Southern Beaufort
Sea, U.S. Geological Survey Open-File Report 1337 (2006), at 13“14.
105 Aars, supra note 95, at 41, 44.
106 Kassie Siegel & Brendan Cummings, Petition to List the Polar Bear as a Threatened Species under

the Endangered Species Act, Feb. 16, 2006, available at http://www.biologicaldiversity.org/swcbd/
SPECIES/polarbear/petition.pdf (last visited Dec. 1, 2006).
107 Id.
108 Id.
Brendan R. Cummings and Kassie R. Siegel
158


from global warming had not yet been published. As such, the Petition was heavily
dependent on the forecasts of climate scientists about what conditions for polar
bears would be in the coming decades. So while NMFS could skirt the issue of the
causal mechanisms of warming oceans and consequent coral decline, acceptance
or rejection of the polar bear Petition would require FWS to squarely address the
science of global warming. Whatever action FWS took in response to the polar bear
Petition would then represent either an explicit agency acceptance of anthropogenic
global warming, something the Bush administration had been loath to do, or a
rejection of the consensus on the science of global warming, in which case the
science of global warming would end up in court under the “best available science”
standard of the ESA.109
When FWS failed to make a ninety-day ¬nding on the Petition, on October 11,
2005, the Center, now joined by two additional NGOs, Greenpeace and the Natural
Resources Defense Council, ¬led a formal notice of intent to sue as required by the
citizen suit provision of the ESA.110 On December 15, 2005, the organizations ¬led
suit in federal district court in San Francisco, California, to compel FWS to make
the overdue ninety-day ¬nding.111 In response, on February 9, 2006, FWS published
its ¬nding in the Federal Register.112
The ninety-day ¬nding made by FWS recites the statutory boilerplate that “the
petition presents substantial scienti¬c or commercial information indicating that the
petitioned action of listing the polar bear may be warranted,” but is otherwise devoid,
however, of any information or statement that could be interpreted as an acknowledg-
ment of the existence of global warming. The closest the agency comes to acknowl-
edging the primary threat to the species is to solicit information, inter alia, “on the
effects of climate change and sea ice change on the distribution and abundance
of polar bears and their principal prey over the short- and long-term.”113 So while
the polar bear cleared this important ¬rst hurdle on the path toward listing, FWS
managed to avoid directly confronting the issue of global warming in the ¬nding.
Within a week after the ninety-day ¬nding was made, the one-year deadline from
the date of the Petition for FWS to make its now-required twelve-month ¬nding
passed.114 The parties ultimately negotiated a settlement, and ¬led a stipulation
setting forth a date certain for FWS to make the twelve-month ¬nding. On July 5,
2006, the Court issued an order approving the stipulation and setting December
27, 2006, as the judicially enforceable deadline for FWS to make the ¬nding as to
whether listing the polar bear under the ESA is or is not warranted.
On December 27, 2006, FWS announced that listing of the polar bear was in
fact warranted and that the agency would be publishing a proposed listing rule. The

U.S.C. § 1533(b)(1)(A).
109 16

U.S.C. § 1540(g).
110 16
111 Ctr. for Biological Diversity v. Norton, No. 05“05191-JSW (N.D. Cal. 2005), complaint available at

http://www.biologicaldiversity.org/swcbd/SPECIES/polarbear/Complaint12“15-05.pdf.
112 Endangered and Threatened Wildlife and Plants; Petition to List the Polar Bear as Threatened, 71

Fed. Reg. 6745 (Feb. 9, 2006).
113 Id.
114 16 U.S.C. § 1533(b)(3)(B).
Biodiversity, Global Warming, and the United States 159


proposed rule was published in the Federal Register on January 9, 2007. 115 As with the
ninety-day ¬nding, the proposed rule avoids mention of the terms “global warming,”
and “greenhouse gases.” The rule, however, does go into great depth about the polar
bear™s dependence on sea ice and ultimately concludes that “polar bear populations
throughout their distribution in the circumpolar Arctic are threatened by ongoing
and projected changes in their sea ice habitat.”116 Just as NMFS found the now-listed
coral species threatened by “elevated sea surface temperatures” without ascribing any
causal mechanism to the rising temperatures, FWS never explicitly acknowledges
why the sea ice is retreating. Nevertheless, the proposal, to a much greater degree
than the coral listing rule, acknowledges that the best available science indicates
that temperatures will continue to rise and sea-ice extent will continue to decline.
The Petition ¬ling, sending of the formal notice of intent to sue, subsequent
lawsuit, positive ninety-day ¬nding, and eventual proposed listing rule for the polar
bear were all accompanied by press releases and all garnered signi¬cant media
attention.117 The announcement of the proposed rule generated more than 1,000
news articles, several hundred television reports, and more than 200 editorials, vir-
tually all of which discussed the decision as an important recognition of the reality
of global warming by the Bush administration.118 The FWS received about 670,000
comments on the proposed rule, far more than had been received on any previous
ESA proposal.119 The press attention and public interest triggered by the listing pro-
cess helped elevate the polar bear to an international symbol of the very real impacts
of global warming.120
While the coral listing process occurred with relatively little fanfare and virtually
no opposition, the listing process for the polar bear has been far more contentious.
The State of Alaska, the Alaska Oil and Gas Association, various other fossil fuel
industry associations, as well as sport-hunting groups all came out publicly in oppo-
sition to listing, and in response the Bush administration instituted a policy prohibit-
ing agency employees from discussing polar bears or global warming while traveling
abroad.121 These entities and others continue to work strenuously against listing.122


115 Endangered and Threatened Wildlife and Plants; 12-Month Petition Finding and Proposed Rule
to List the Polar Bear (Ursus maritimus) as Threatened throughout Its Range, 72 Fed. Reg. 1063
(Jan. 9, 2007).
116 Id. at 1081.
117 See http://www.biologicaldiversity.org/swcbd/SPECIES/polarbear/index.html for press releases and

examples of and links to various media articles and television coverage of the listing process.
118 Id.
119 73 Fed. Reg. at 28, 235.
120 The polar bear was featured on the cover of the Apr. 3, 2006, issue of Time magazine accompanying

a cover story about global warming (see supra note 5). Similarly, an animation showing a drowning
polar bear appears in Al Gore™s documentary An Inconvenient Truth.
121 Dan Joling, Threat of Polar Bear Listing Stirs Politicians, Anchorage Daily News, May 6, 2007;

Dan Joling, ˜Threatened™ Polar Bear Listing Debated, Anchorage Daily News, Mar. 2, 2007; Andrew
Revkin, Memos Tell Of¬cials How to Discuss Climate, N.Y. Times, Mar. 8, 2007.
122 As discussed supra, listing decisions are to be based solely on science; nevertheless, signi¬cant political

pressure is often brought to bear on Interior Department decision-makers regarding controversial
listings. See supra note 46.
Brendan R. Cummings and Kassie R. Siegel
160


Despite the vociferous opposition from powerful industry groups, the relentless
and accelerating warming of the Arctic and increased resources directed toward
understanding the future status of polar bears made it increasingly untenable for
the Bush administration to refuse to protect the bear. Between the listing proposal
and the January 9, 2008, deadline for a ¬nal listing decision, both the scienti¬c
evidence and public interest in the decision continued to mount. Scienti¬c articles,
and subsequent popular press reports, on polar bears drowning from lack of sea
ice, starving from lack of access to food, and engaging in cannibalism presumably
triggered by food stress, all phenomena without precedent, have appeared with
alarming frequency.123 The Southern Beaufort Sea population in Alaska and Canada,
considered “stable or increasing” at the time of the Petition, is now considered to be
both “declining” and “reduced.”124
Most signi¬cantly, in 2007, FWS requested that the Department of Interior™s U.S.
Geological Survey (USGS) address a series of research questions relating to the status
of the polar bear. The USGS produced nine administrative reports addressing these
questions and in doing so signi¬cantly advanced the understanding of sea-ice loss
and its implications for polar bears. The USGS conducted polar bear population
modeling based on ten general circulation models that most accurately simulate
future ice conditions.125 The USGS used the Intergovernmental Panel on Climate
Change (“IPCC”) A1B “business as usual” scenario of future emissions to run the
climate models.126 In the A1B scenario, atmospheric carbon dioxide concentrations
reach 717 parts per million by 2100.
The USGS divided the world™s polar bear populations into four ecological regions:
The (1) Seasonal Ice Ecoregion, which includes Hudson Bay, and occurs mainly
at the southern extreme of the polar bear range, (2) the Archipelago Ecoregion
of the Canadian Arctic, (3) the Polar Basin Divergent Ecoregion, where ice is
formed and then advected away from near-shore areas, and (4) the Polar Basin
Convergent Ecoregion, where sea ice formed elsewhere tends to collect against the
shore.127
The USGS projected the future range-wide status of polar bears using two different
modeling techniques, and the results are profoundly disturbing. The USGS projects
that polar bears will be extinct in the Seasonal Ice and Divergent Ice ecoregions by
the middle of this century.128 These two ecoregions account for two thirds of the
world™s polar bears, including all of the bears in Alaska. The “good news” is that polar
bears may survive in the high Canadian Archipelago and portions of the Convergent
Ice Ecoregion through the end of this century. However, their extinction risk is still
extremely high: over 40 percent in the archipelago and over 70 percent in Northwest

supra notes 94“105.
123 See
124 Aars, supra note 95, at 34.
125 Steven C. Amstrup et al., Forecasting the Range-wide Status of Polar Bears at Selected Times in the

21st Century, U.S. Geological Survey Administrative Report (U.S. Geological Survey, Reston,
VA, 2007).
126 Id.
127 Id. at 1.
128 Id.
Biodiversity, Global Warming, and the United States 161


Greenland.129 Moreover, the most likely outcome for each of these ecoregions by
the end of this century is also extinction.130
In addition, the USGS emphasized that because all of the available climate
models have to date underestimated the actual observed sea-ice loss, the assessment
of risk to the polar bear is conservative.131 Perhaps most worrisome is the observation
that part of an area in the Canadian Archipelago expected to provide an icy refuge
for the polar bear in 2100 lost its ice in the summer of 2007.132
As the January 9, 2008, deadline for a ¬nal listing decision approached, the Bush
administration thus found itself faced with both irrefutable scienti¬c evidence of
the threat to polar bears and mounting media and public interest in the decision.
In response, the administration again sought refuge in delay. On January 7, 2008,
FWS Director Dale Hall held a press conference and stated that the agency would
not meet the deadline, but intended to issue the decision within thirty days. The
conservation organizations ¬led a 60-Day Notice Letter of Intent to Sue for failure
to publish a ¬nal listing determination, and, when the decision had still not been
issued within sixty days, ¬led suit on March 10, 2008.133 Plaintiffs moved for summary
judgment on April 2, 2008, the ¬rst day allowed under the Local Rules of Court.
On April 28, 2008, the District Court issued an order granting Plaintiffs™ Motion
for Summary Judgment, ¬nding Defendants in violation of the ESA for failing to
publish a ¬nal listing decision for the polar bear by January 9, 2008, and directed
Defendants to publish a ¬nal decision by May 15, 2008, and to make any ¬nal
regulation effective upon publication pursuant to 5 U.S.C. § 553(d)(3).134
On May 14, 2008, Secretary of Interior Dirk Kempthorne announced the Bush
administration would list the polar bear as a Threatened species throughout its
range.135 He accompanied his statement with images showing the rapid melting of
the Arctic sea ice. The announcement was remarkable, given both the fact that the
administration had spent nearly eight years denying and downplaying the science
of global warming and the fact that the administration had shown unprecedented
hostility to endangered species and listed far fewer species under the Act than any
other. The polar bear was, in fact, the ¬rst species listed by Secretary Kempthorne
in the United States in over two years.
The decision was a watershed moment in the Bush administration™s approach to
the science of global warming. The ¬nal listing decision clearly and unambiguously
adopts the consensus view of the world™s scientists on global warming and Arctic
melting, and rejects arguments propounded by a tiny number of industry funded
spokespeople.136 The portions of the rule dealing with climate science and polar bear

at 66“67 (Table 8).
129 Id.
130 Id.

e.g., Amstrup et al., supra note 125, at 34, 36.
131 See,

at 35, 96.
132 Id.
133 Ctr. for Biological Diversity v. Kempthorne, No. 08“1339 (CW) (N.D. Cal. ¬led Mar. 10, 2008).
134 See Ctr. for Biological Diversity, No. 08“1339, 2008 WL 1902703, at — 5, — 10 (N.D. Cal. Apr. 28, 2008).
135 http://www.doi.gov/secretary/speeches/081405_speech.html.
136 See, e.g., 73 Fed. Reg. at 28,219“28,234 (discussion of Arctic sea ice and climate change); 73 Fed.

Reg. at 28,246 (“We have consistently relied on synthesis documents [such as the IPCC™s Fourth
Brendan R. Cummings and Kassie R. Siegel
162


biology are well written, and the importance of these conclusions being included
in the binding and precedential ¬nal regulation listing the polar bear cannot be
overstated.137 Not surprisingly, however, the decision did not include everything
that the law requires.
First, the administration listed the polar bear as “Threatened,” rather than as
“Endangered.” While Threatened status would have been appropriate as of February
2005, when the Petition was ¬rst ¬led, by the time of the listing decision, the science
clearly mandated Endangered status. A species that is expected to decline by two-
thirds in number, disappear from half of its range, and for which the most likely
status by the end of the century is global extinction must be considered “in danger
of extinction throughout all or a signi¬cant portion of its range.”138 Second, having
listed the polar bear as Threatened rather than Endangered, the administration
attempted to reduce protections to the polar bear through an Interim Final Section
4(d) (“4(d) Rule”), which authorizes activities that would otherwise be prohibited
by the ESA and its implementing regulations.139 The 4(d) Rule also purports to
exempt all greenhouse gas“emitting projects from the ambit of Section 7 of the
ESA. Finally, the administration failed to designate critical habitat for the polar bear,
stating, nonsensically, that it was currently impossible to determine what habitat is
essential to the species.140 Plaintiffs are challenging these and other shortcomings of
the ¬nal rulemaking in the ongoing litigation.141 Global warming has clearly arrived
in the Arctic and, if the polar bear is to survive, requires an immediate response. The
ESA is a critically important part of the U.S. regulatory response to global warming.


1.4. The ESA and Global Warming
While the ESA, passed by Congress in 1973, was enacted well before global warming
was widely recognized as a threat to biodiversity, the statute was written with suf¬cient
breadth, and with understanding of the ever-evolving nature of scienti¬c knowledge,
that the law needs no amendment to operate effectively to protect species in a

Assessment Report and the Arctic Climate Impact Assessment] that present the consensus view of a
very large number of experts on climate change from around the world. We have found that these
synthesis reports, as well as the scienti¬c papers used in those reports or resulting from those reports,
represent the best available scienti¬c information we can use to inform our decision and have relied
upon them and provided citation within our analysis.”
137 That the polar bear decision marked a turning point was reinforced by the administration™s release,

just two weeks later, of the scienti¬c assessment of climate change impacts in the United States.
required by the Global Change Research Act of 1990. The release of this report was also required
by a court order in Ctr. for Biological Diversity v. Brennan, No. 06“7062, 2007 WL 2408901
(N.D. Cal. 2007). The scienti¬c assessment, released on May 29, 2008, comprehensively af¬rms
the best available science on climate change that the administration had long sought to question.
http://www.climatescience.gov/Library/scienti¬c-assessment/.
138 15 U.S.C. § 1531(6).
139 73 Fed. Reg. at 28,306“28,318 (Endangered and Threatened Wildlife and Plants, Special Rule for the

Polar Bear) (May 15, 2008) (“4(d) Rule”). 16 U.S.C. § 1538(a); 50 C.F.R. § 17.31.
140 73 Fed. Reg. at 28,297“28,299.
141 Ctr. for Biological Diversity v. Kempthorne, Civ. No. 08“1339 (CW) (N.D. Cal. ¬led Mar. 10, 2008).
Biodiversity, Global Warming, and the United States 163


greenhouse world. What the law need, however, is agency decision-makers willing
to heed the “best available science,” to accept the reality of global warming, and its
causes and solutions, and then take actions consistent with their statutory mandates
to mitigate or adapt in the face of this “inconvenient truth.” With both the corals
and the polar bear now listed, the interplay of the ESA with global warming is no
longer theoretical. A brief exploration of the application of the various provisions
of the ESA to the problem of global warming, from the listing process through the
prohibitions against “jeopardy” and “take” follows.


1.4.1. The Listing Process
As discussed previously, none of the protections of the ESA apply to a species unless it
is formally listed under the act. For some species, the impacts of global warming have
already been felt and the species are already clearly facing extinction. In such case,
they should be listed as Endangered. The polar bear and the elkhorn and staghorn
corals fall into this category.142 In these instances, the listing process can be completed
without FWS or NMFS having to squarely address the science of global warming
or explicitly acknowledge the inadequate domestic and international climate policy
positions leading to the continued growth of greenhouse gas emissions. Again, this
is how the coral listing played out.
For many species, however, the worst effects of global warming have yet to be
felt; these species are not yet facing extinction. Yet given the amount of additional
warming that will occur in the coming decades even under the best scenarios, they
clearly will face severe threats to their continued existence in the future. Given the
projections for upwards of a third of Earth™s species to be committed to extinction as a
result of global warming by midcentury,143 hundreds of thousands, if not millions of
species potentially fall into this category. These species would properly warrant listing
as Threatened.144 A species is Threatened, however, only if the extinction threat is
in the “foreseeable future.”145 The phrase “foreseeable future” is not de¬ned by
the ESA. Climate models regularly extrapolate results out to 2100 and beyond. The
IUCN calculates certain types of extinction risk based on 100-year time frames.146

142 Judicial review of the listing of the polar bear as Threatened rather than Endangered is ongoing as of
the time of this writing, and the corals™ listing status will likely be the subject of a future challenge as
well.
143 Chris D. Thomas et al., Extinction Risk From Climate Change, 427 Nature 145 (2004); Jay R.

Malcolm et al., Global Warming and Extinctions of Endemic Species from Biodiversity Hotspots, 20
Conservation Biology 538 (2006).
144 While the Thomas study conveys the magnitude of the impending climate-driven extinction crisis,

it does not contain the species-speci¬c information necessary for a listing regulation under the ESA.
As a practical matter, therefore, while thousands of climate-imperiled species may warrant listing as
Threatened under the ESA, for only a small fraction will there likely be suf¬cient information to
prepare and process a listing petition.
145 16 U.S.C. § 1532(20).
146 H. Resit Akcakaya et al., Use and Misuse of the IUCN Red List Criteria in Projecting Climate Change
¸
Impacts on Biodiversity, 12 Global Change Biology 2037 (2006).
Brendan R. Cummings and Kassie R. Siegel
164


If climate models can predict warming and the IUCN can calculate extinction risk
on 100-year time horizons, then it would seem that at least this amount of time
is “foreseeable.” In the ESA context, however, FWS and NMFS have often taken
an unreasonably narrow view of the foreseeable future. In the coral listing rule,
NMFS de¬ned the “foreseeable future” as thirty years.147 Given the already severe
declines the coral have undergone, this truncation of what is foreseeable ultimately
had little legal effect and the corals were still listed. Similarly, for the polar bear,
FWS treated the “foreseeable future” as forty-¬ve years.148 Again, the decline of the
polar bears™ sea-ice habitat has been so rapid that even under this rather short time
frame the species is clearly imperiled. However, for many species, habitat loss, and
hence extinction, may not occur for another 50 to 100 years; limiting the horizon for
analysis to the next 30 years or less could lead to a determination that the species is not
in fact Threatened. Courts faced with unreasonably short agency treatments of the
“foreseeable future” provision have set aside decisions not to list species ranging from
salmon149 to rare plants.150 Legal wrangling over the “foreseeable future” is likely to
be a major element of most efforts to list species imperiled by global warming.151
Any decision of FWS or NMFS to not list a species threatened by global warming
is subject to judicial review.152 While court review of most agency decisions is
limited by the highly deferential “arbitrary and capricious” standards set out by
the Administrative Procedure Act,153 listing decisions under the ESA must still
utilize only the “best available science,”154 a standard that prohibits reliance on
political and economic arguments. Moreover, the “best available science” standard
places an emphasis on peer-reviewed science,155 something the climate skeptics can
rarely point toward in their attempts to refute the reality of global warming. This
“best available science” standard for decision-making therefore provides an ideal
framework to bring the science of global warming into the federal courtroom.
While the goal of ¬ling a petition to list a species threatened by global warming is
to see the species listed and the protections of the ESA applied, the “best available
science” standard of the statute creates a win-win dynamic for petitioners. It was this
standard that forced the Bush administration to list the polar bear and acknowledge


Fed. Reg. at 26,854.
147 71

Fed. Reg. at 28,253.
148 73
149 Or. Natural Resources Council v. Daley, 6 F. Supp. 2d 1139, 1150“52 (D. Or. 1998).
150 Western Watersheds Project v. Foss, No. 04“168-MHW (D. Idaho 2005) (Aug. 19, 2005, Order on

Summary Judgment).
151 The Supreme Court™s decision in Massachusetts v. U.S. EPA, 549 U.S. 497 (2007), may be instructive

on this issue as the majority recognized Massachusetts™ assertions of damages that would occur over
the course of a century.
152 16 U.S.C. § 1533(b)(3)(C)(ii).
153 5 U.S.C. § 706(2)(A); Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842“43 (1984).
154 See supra note 48.
155 FWS/NMFS 1994. Interagency Cooperative Policy for Peer Review in Endangered Species Act

Activities, 59 Fed. Reg. 34,270, and Interagency Cooperative Policy on Information Standards under
the Endangered Species Act, 59 Fed. Reg. 34,271.
Biodiversity, Global Warming, and the United States 165


the ¬ndings of the IPCC, ACIA, and other mainstream literature as the “best avail-
able science.” High-level of¬cials must have known that a refusal to list the polar
bear and continued reference to the opinions of a handful of discredited climate
deniers would have led to litigation over what constitutes the “best available” climate
science that the administration was sure to lose.
In addition to the actual decision as to whether listing a given species under
the ESA is or is not warranted, global warming is likely to factor into several other
related provisions of the ESA. At the twelve-month ¬nding stage of processing a
listing petition, FWS and NMFS can in limited circumstance make a “warranted
but precluded” ¬nding.156 The agencies can only make such a ¬nding if they are
making expeditious progress to list other species facing more immediate threats.157 As
a practical matter, NMFS receives far fewer listing petitions than FWS, and therefore
has no listing backlog, and does not and cannot invoke this exception.158 For FWS,
however, more than 250 species are on this waiting list for protection.159 For many
species threatened by global warming, impacts that may not manifest for a decade or
more may seem less pressing than those facing species suffering direct and immediate
loss of their habitat from other human actions such as logging or development. In
such cases, protection of a climate-imperiled species may be deemed “precluded”
long enough that the global warming impacts become irreversible before the species
ever receives the protections of the ESA.
The Kittlitz™s murrelet (Brachyramphus brevirostris) is currently in this “warranted
but precluded” purgatory. The Kittlitz™s murrelet is a glacial relict species occurring
in Alaska and Russia.160 It is strongly associated with tidewater glaciers for foraging. It
has one of the smallest populations of any North Paci¬c seabird and, as its tidewater
glacier habitat recedes, is rapidly declining. In May 2001, the Center petitioned to
list the Kittlitz™s murrelet under the ESA.161 The murrelet was the ¬rst species for
which the Center petitioned for ESA listing based upon the threat of global warming.
However, as with the corals, the murrelet™s decline is likely multicausal and a case
for ESA listing could be made even absent the climate threat. FWS ultimately
found that listing was “warranted but precluded” and has “recycled” this ¬nding for
more than ¬ve years.162 In making the “warranted” part of this ¬nding, FWS never
mentions global warming, while for the “precluded” portion of the ¬nding, FWS

U.S.C. § 1533(b)(3)(B)(iii). A “warranted but precluded” ¬nding is subject to judicial review, 16
156 16

U.S.C. § 1533(b)(3)(C)(ii), and FWS™s failure to make expeditious progress on its listing backlog is the
subject of substantial litigation. See, e.g., Ctr. for Biological Diversity v. Kempthorne, 466 F.3d 1098
(2006).
157 Id.
158 See discussion supra note 78.
159 Endangered and Threatened Wildlife and Plants; Review of Native Species That Are Candidates

or Proposed for Listing as Endangered or Threatened; Annual Notice of Findings on Resubmitted
Petitions; Annual Description of Progress on Listing Actions, 71 Fed. Reg. 53,756 (Sept. 12, 2006).
160 Information on the Kittlit™z murrelet is summarized in the listing petition available at http://

www.biologicaldiversity.org/swcbd/SPECIES/murrelet/index.html.
161 Id.
162 71 Fed. Reg. at 53,780.
Brendan R. Cummings and Kassie R. Siegel
166


¬nds the threats (whatever they may be) to be “nonimminent.”163 The “warranted
but precluded” ¬nding for the Kittlitz™s murrelet and 250-plus other species similarly
situated is being challenged on the grounds that FWS is not making the required
“expeditious progress” on listings.164 Regardless of the outcome of that particular
case, whether global warming threats to a species are “nonimminent,” and therefore
justify delay in listing will likely be another contested subject as global warming gets
inserted into agency decision-making under the ESA.
The ESA requires the designation of “critical habitat” for a species concurrently
with listing, or in limited circumstances, within a year of listing.165 Critical habitat
is de¬ned as:

(i) the speci¬c areas within the geographical area occupied by the species, at the
time it is listed in accordance with the provisions of section 1533 of this title,
on which are found those physical or biological features
(ii) essential to the conservation of the species and
(iii) which may require special management considerations or protection; and
(iv) speci¬c areas outside the geographical area occupied by the species at the
time it is listed in accordance with the provisions of section 1533 of this title,
upon a determination by the Secretary that such areas are essential for the
conservation of the species.166

The FWS and NMFS have been slow to take into account changes in species™
distribution and habitat that will result from global warming when designating
critical habitat, but this is beginning to change. Proposals for species including the
Quino checkerspot butter¬‚y167 and elkhorn and staghorn corals168 include reference
to climate change, though it remains to be seen whether the agencies will correct
de¬ciencies in these proposals. As is evident from the de¬nition of critical habitat,
the ESA explicitly grants the authority to designate areas outside of a species™ current
range as critical habitat if those areas are “essential for the conservation of the
species.169 For many species undergoing rapid range shifts, protection of such areas
as critical habitat will be one of the most important regulatory actions that will allow
them to persist in a changing climate.
The ESA also requires the preparation, periodic update, and implementation of
recovery plans to outline and carry out the steps necessary to conserve each listed

163 Id.
164 Ctr. for Biological Diversity v. Norton, No. 04-CV-02026 (GK) (D.D.C., ¬led Nov. 18, 2004).
165 16 U.S.C. §§ 1533(a)(3)(A) & (b)(6)(C). As a practical matter, critical habitat designation rarely happens

in the absence of litigation to compel such designation.
U.S.C. § 1532(5).
166 16
167 Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the

Quino Checkerspot Butter¬‚y (Euphydryas editha quino), 73 Fed. Reg. 3328“3373 (January 17, 2008).
168 Endangered and Threatened Species; Critical Habitat for Threatened Elkhorn and Staghorn Corals,

73 Fed. Reg. 6895 (February 6, 2008).
169 Id.
Biodiversity, Global Warming, and the United States 167


species.170 The ¬rst recovery plan to mention global climate change was published
in 1990. Recovery plans with such references were sporadic, but issued in most years
between 1991 and 1999. Between 2000 and May 2008, the percentage of recovery
plans with global climate change references grew dramatically. At least 48 present
of plans issued in all years between 2004 and May 2008 referenced global climate
change. Of those that address global climate change, most call for monitoring and/or
mitigation. Few call for reductions in global warming or greenhouse gasses. None
specify how reductions should be accomplished, either generally or in the context of
the ESA (i.e., through Section 7 consultation, etc.). As recovery plans for the corals
and polar bear are developed, the role of recovery planning in addressing the threat
of global warming will likely be the center of signi¬cant contention. Similarly, as
FWS and NMFS revise recovery plans for already listed species, these plans must,
if they are to withstand legal scrutiny, analyze the effects of global warming on any
such species likely to be harmed by such warming, and lay out a plan for both
mitigation of and adaptation to those threats.171
Finally, the ESA also requires that every ¬ve years the status of all listed species
be assessed to determine if they still warrant the protections of the Act, or if a change
from Threatened to Endangered status (or the reverse) is warranted.172 Such reviews
open the door to the consideration of global warming™s effects on all currently listed
species, an essential step if they are to survive under even the most optimistic future
scenarios for warming.


1.4.2. The Consultation Process and the Obligation to Avoid Jeopardy
As noted previously, the section 7 consultation process is the heart of the ESA.
Section 7 directs all federal agencies to “insure through consultation” with FWS
or NMFS, that all actions authorized, funded, or carried out by such agencies are
“not likely to jeopardize the continued existence” or “result in the destruction or
adverse modi¬cation” of “critical habitat” of any listed species.”173 The result of the
consultation process is a biological opinion produced by FWS or NMFS concluding
whether the action can go forward and suggesting alternatives to the action as
necessary to avoid jeopardy to the species or adverse modi¬cation of critical habitat.174
For section 7 to protect species from global warming, global warming needs to
be considered with regard to the action subject to consultation in two key respects:
(1) the relevant agencies must take into account, and reduce or eliminate, the
greenhouse gas emissions inevitably resulting from the action (mitigation); and
(2) the relevant agencies must take into account the observed and projected effects
of global warming on the species otherwise affected by the action (adaptation).

U.S.C. § 1533(f ).
170 16
171 Id.

U.S.C. § 1533(c)(2).
172 16

U.S.C. § 1536(a)(2).
173 16
174 16 U.S.C. § 1536(b).
Brendan R. Cummings and Kassie R. Siegel
168


Section 7 consultation is required for “any action [that] may affect listed species or
critical habitat.”175 Agency “action” is de¬ned in the ESA™s implementing regulations
to include “all activities or programs of any kind authorized, funded, or carried out,
in whole or in part, by Federal agencies in the United States or upon the high
seas. Examples include, but are not limited to: (a) actions intended to conserve
listed species or their habitat; (b) the promulgation of regulations; (c) the granting
of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or
(d) actions directly or indirectly causing modi¬cations to the land, water, or air.”176
This regulatory de¬nition of “action” should be suf¬ciently broad to encompass
actions that result in greenhouse gas emissions, as it would be hard to argue that such
emissions are not “causing modi¬cation to the land, water, or air.” The remaining
question with respect to the triggering of these requirements for an action resulting
in greenhouse gas emissions is whether that action “may affect” the listed species.
While it is clear that global warming affects listed species, attributing an individual
action™s contribution to global warming is more dif¬cult.
Because the goal of section 7 consultation is to avoid jeopardizing any listed
species, the regulatory de¬nition of “jeopardy” offers some guidance as to how the
consultation requirement for a greenhouse gas“emitting action may be interpreted.
To “jeopardize” a species means “to engage in an action that reasonably would be
expected, directly or indirectly, to reduce appreciably the likelihood of both the
survival and recovery of a listed species in the wild by reducing the reproduction,
numbers, or distribution of that species.”177 If an action “appreciably” contributed
to global warming, that action could then be found to jeopardize a listed species.178
“Appreciably” has been de¬ned as being “to the degree that can be estimated,” while
something is “appreciable” if it is “large or important enough to be noticed.”179 So
if an action contributes an appreciable amount of greenhouse gas emissions to the
atmosphere, that action should undergo the consultation process.
While many federal actions may not contribute appreciable amounts of green-
house gases to the atmosphere, many clearly do so. For example, the corporate
average fuel economy (CAFE) standards for cars and light trucks are set via reg-
ulation by the National Highway Transportation Safety Administration. Since the
transportation sector represents a large component of U.S. greenhouse gas emis-
sions, the volume of greenhouse gases represented by this single act of rulemak-
ing are certainly “appreciable.” Similarly, every ¬ve years the Minerals Manage-
ment Service approves a program for all offshore oil and gas leasing for the entire
United States. Again, the greenhouse gases generated through the life cycle of the


C.F.R. § 402.14.
175 50

C.F.R. § 402.02 (emphasis added).
176 50
177 50 C.F.R. § 402.02 (emphasis added).
178 This analysis assumes the validity of the current consultation regulations. An argument can be made

that the regulations improperly narrow the reach of the consultation requirements of section 7.
However, such a critique of the regulation is beyond the scope of this chapter.
179 Oxford English Dictionary online, available at http://www.askoxford.com.
Biodiversity, Global Warming, and the United States 169


production and use of these billions of barrels of oil are very “appreciable.” The
greenhouse gas emissions from numerous other actions, ranging from the approval
of new coal-¬red power plants, oil shale leasing programs, or limestone mines for
cement manufacturing, and dozens, perhaps hundreds, of other projects are indi-
vidually and cumulatively having an appreciable effect on the atmosphere. These
are all agency “actions” as de¬ned by the ESA, which “may affect” listed species,
and therefore trigger the consultation requirements of section 7.180
While federal agencies have also been slow in consulting on the impacts of green-
house gas emissions and global warming on ESA-listed species, this is also changing.
In May 2007 a biological opinion analyzing the impact of water withdrawals on the
delta smelt, a ¬sh that occurs in California™s San Joaquin Delta and is impacted
by massive water pumping for agricultural and urban purposes, was overturned for
failure to consider the impact of global warming on water levels for the ¬sh.181 Also in
2007, the FWS required consideration of greenhouse gas emissions and global warm-
ing in a Section 7 consultation for a new coal ¬red power plant in New Mexico.182
With the listing of the polar bear, this trend should accelerate.183
Arguments against the applicability of section 7 to greenhouse emissions are
premised on a claimed lack of demonstrable connection between greenhouse emis-
sions and harm to listed species. However, the connection between greenhouse
gas emissions and sea-ice reductions “ and the effect that sea-ice decline has on
polar bears “ is supported by voluminous scienti¬c literature and, indeed, is the
central reason for the decision to place the polar bear on the list of Threatened
and Endangered species. Just as there is no requirement to link the thinning of any
particular bald eagle egg to any particular molecule of DDT to demonstrate that
authorization of the use of DDT may result in a taking of bald eagles, there is no
requirement to link any particular molecule of carbon dioxide or other greenhouse
pollutant to global warming and the Arctic melt. The Supreme Court stated in TVA
that Section 7 “admits of no exception,” and affords endangered species “the highest
of priorities.”184 There is no reason greenhouse gas emissions that jeopardize polar


180 Many of these actions are also “major federal actions” under NEPA, 42 U.S.C. §§ 4321“4347, and
the impacts of their emissions should be analyzed under that statute as well. See, e.g., Found. on
Econ. Trends v. Watkins, 794 F. Supp. 395 (D.D.C. 1992) (case attempting to force analysis of global
warming impacts under NEPA).
181 Natural Res. Def. Council v. Kempthorne, 506 F.Supp.2d 322 (E.D. Cal. 2007).
182 Memorandum from Fish and Wildlife Service, Supervisor of New Mexico Ecological Services, to

Bureau of Indian Affairs, Regional Director of Navajo Regional of¬ce (July 2, 2007) (on ¬le with
author).
183 The Bush administration attempted to exempt gas emissions from Section 7 through a “midnight regu-

lation,” which would have substantially changed the nationwide Section 7 regulations in a number of
ways, including creating an exemption for greenhouse gas emissions. Interagency Consultation Under
the Endangered Species Act, 73 Fed. Reg. 76272“76287 (Dec. 16, 2008). However, these regulations
were revoked by the Obama administration. Interagency Consultation Under the Endangered Species
Act, 74 Fed. Reg. 20421“20423 (May 4, 2009).
184 TVA, 437 U.S. at 173“74.
Brendan R. Cummings and Kassie R. Siegel
170


bears should be treated any differently than pesticides that harm salmon or logging
that harms owls.
Beyond consultations in which the primary threat is global warming, the issue
will likely emerge with respect to species subject to consultation for other reasons.
For example, a ¬nding that allowing the destruction of certain coastal wetlands
relied upon by a listed species will not equate to jeopardy because suf¬cient other
wetlands still exist in a nearby preserve utterly fails to protect the species if the
preserve will no longer exist in ¬fty years following another half meter or more of
sea level rise. Incorporating the changing conditions caused by global warming into
agency decision-making is essential if already imperiled species are to survive given
the amount of warming we are already committed to even under the best scenarios.
In sum, section 7 of the ESA carries with it the mandate to force actual reductions
in greenhouse gas emissions because the federal agencies approving the actions
responsible for such emissions have a duty to ensure against jeopardizing all listed
species. Moreover, even in instances where section 7 ultimately does not result
in actual emissions mitigation, it certainly holds the promise of forcing climate-
informed decision-making on actions affecting listed species, such that these species
have greater hope of surviving in a greenhouse world.


1.4.2. The Take Prohibition
While section 7 only applies to federal actions and agencies, the prohibitions of
section 9 apply far more broadly, reaching the actions of private entities and cor-
porations. Section 9 prohibits the “take” of Endangered species, which includes
“harming” and “harassing” listed species in addition to simply killing them directly.185
Both the legislative history and case law support “the broadest possible” reading of
“take.”186 That reading should certainly be broad enough to encompass greenhouse
gas emissions.
The impacts polar bears are already experiencing from global warming clearly
meet the de¬nition of “harm” and “harass.”187 Moreover, the temperature-induced
bleaching of elkhorn and staghorn corals often results in mortality, and therefore
also ¬ts within the de¬nition of “take.”188 The problem is one of causation. While
it is clear that global warming is causing prohibited take of listed species, current
warming is the product of past emissions. Under the citizen suit provision of the
ESA, one can only enjoin ongoing or future take.189 However, since past take is
often the best evidence of the likelihood of future take, an appropriate defendant


U.S.C. § 1538(a).
185 16
186 Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 704“05 (1995).
187 See Sections 1.1 & 1.3.2 supra. Courts have generally treated “harm” and “harass” as complimentary

provisions, with an action found to “harm” a species usually also found to “harass” the species as
well.
188 See Section 1.2.2 supra.
189 16 U.S.C. § 1540(g); Nat™l Wildlife Fed™n v. Burlington N. R.R., 23 F.3d 1508, 1511 (9th Cir. 1994).
Biodiversity, Global Warming, and the United States 171


(or group of defendants) in a section 9 climate case would be an entity that has
already contributed measurably to anthropogenic greenhouse gas emissions and,
absent regulation, is likely to do so in the future. The utility company defendants in
Connecticut v. American Electric Power Co.,190 or any of the major oil companies,
are responsible for enough greenhouse gas emissions that they individually, and
certainly collectively, reasonably can be considered the proximate cause of the take
of listed species.191
The section 9 take prohibition, for the most part, applies only to species listed
as Endangered.192 However, section 4(d) of the ESA requires FWS or NMFS to
promulgate regulations applying any of the prohibitions of section 9 to Threatened
species if such regulations are “necessary and advisable” for the conservation of
the species.193 FWS has promulgated a blanket 4(d) rule applying section 9 to all
Threatened species.194 On rare occations, such as with the polar bear, FWS has
issued species-speci¬c 4(d) rules that alter the terms of the take prohibition.
In the 4(d) rule for the polar bear,195 FWS has also attempted to exempt green-
house gas emissions from regulation pursuant to section 9. This regulation is being
challenged,196 and, we believe, highly unlikely to survive judicial scrutiny. The ¬rst
litigation regarding the role of section 9 in addressing greenhouse gas emissions thus
will likely not be brought against a major corporate emitter of greenhouse gases,
but rather against FWS to determine whether such regulations are necessary for the
conservation of the polar bear.


2. CONCLUSION: WILDLIFE LAW AS A SURROGATE
FOR OR SUPPLEMENT TO A NATIONAL POLICY ON
GREENHOUSE GAS REGULATION

While we believe that the ESA has a signi¬cant role to play in the protection of
U.S. and perhaps global biodiversity in the face of global warming, we are under
no delusions that the statute represents the “silver bullet” that will result in the
United States substantially reducing its greenhouse gas emissions so as to stave off
the worst effects of global warming. Without massive policy changes, global warming
threatens as many as a third to a half of the species currently living on Earth with
190 Connecticut v. Am. Elec. Power Co., 406 F.Supp.2d 265 (S.D.N.Y. 2004), appeal docketed,
No. 05“5104 (2nd Cir. Sept. 22, 2005).
191 For a discussion of the application of section 9 to takings resulting from the combined impacts of

multiple independent actors, see, e.g., Federico Cheever & Michael Balster, The Take Prohibition in
Section 9 of the Endangered Species Act: Contradictions, Ugly Ducklings, and Conservation of Species,
34 Envtl. L. 363 (2004).
192 16 U.S.C. § 1538(a).
193 16 U.S.C. § 1533(d).
194 50 C.F.R. § 17.31(a).
195 73 Fed. Reg. at 28,306“28,318 (Endangered and Threatened Wildlife and Plants, Special Rule for the

Polar Bear) (May 15, 2008) (“4(d) Rule”). 16 U.S.C. § 1538(a); 50 C.F.R. § 17.31.
196 In re Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, Misc. Action 08-0768

(EGS) (Dist. D.C. 2008).
Brendan R. Cummings and Kassie R. Siegel
172


extinction.197 Nevertheless, the ESA™s breadth and force mean that it stands as one
of the most promising mechanisms to force government and corporate entities to
disclose, analyze, and mitigate the impacts of their greenhouse gas emissions.
Efforts to address global warming through the ESA have received so much atten-
tion in large part because the Bush administration successfully blocked regulation
of greenhouse emissions under the Clean Air Act, which should be the ¬rst-tier
regulator of all major sources of greenhouse emissions in the United States. It is
important to recognize that section 7 consultations for greenhouse gas emissions
should not occur in a regulatory vacuum, but rather as one part of a comprehensive
and somewhat overlapping set of U.S. domestic laws that already address green-
house emissions. Resistance to addressing greenhouse emissions through section 7
consultations often springs from a lack of understanding of how regulation under
the ESA would ¬t into the comprehensive, complimentary, and in some ways over-
lapping regulatory system for greenhouse emissions that is already provided by the
Clean Air Act, Clean Water Act, ESA, National Environmental Policy Act, Global
Change Research Act, and other laws. The irony of the U.S. foot-dragging on global
warming is that the United States has the strongest domestic environmental laws in
the world, capable of effectively and ef¬ciently reducing greenhouse gas emissions
immediately, and each with a proven track record of success in protecting the air
we breathe, the water we drink, and the diversity of life on Earth. In contrast to the
Bush administration, which actively sought to block use of any U.S. laws to address
greenhouse gas emissions, the Obama administration appears to be taking steps, at
long last, towards actually implementing existing law. Whether President Obama
will act with the speed and decisiveness required to solve the climate crisis remains
to be seen.
While new, science-based federal climate legislation that would mandate the deep
greenhouse gas reductions from the U.S. economy necessary to address the climate
crisis would certainly be welcome, it is critically important that new legislation
build upon the successful regulatory regime already in place. For over four decades
our ¬‚agship environmental laws have saved lives, saved money, and protected the
environment, and there is no reason to weaken or eliminate any provision of existing
law when adding new climate focused mandates. We have irreversibly altered the
natural world; only by acknowledging and urgently responding to those changes will
most species still have a chance of persisting in the very different world we have
created for them. The ESA, still strong and relevant thirty years after it was passed
into law, is essential to that effort.
197 Thomas (2004), supra note 143; Hansen (2006), supra note 54, at 14, 292.
8

An Emerging Human Right to Security from Climate Change:
The Case Against Gas Flaring in Nigeria

Amy Sinden—



INTRODUCTION

Is there a human right to security from climate change? A recent ruling by the Federal
High Court of Nigeria suggests that there is. Royal Dutch/Shell Group (Shell) and
the other companies that produce oil in Nigeria have engaged for decades in a
practice called “gas ¬‚aring,” in which natural gas released during oil extraction is
burned off, discharging large clouds of greenhouse gases and other pollutants into
the atmosphere.1 Citing the climatic and other environmental impacts of gas ¬‚aring
on their community, Nigerians living near the ¬‚ares ¬led a lawsuit charging that
the practice violates their fundamental rights to life and dignity guaranteed under
the Nigerian constitution.2 In a ruling on November 14, 2005, the Federal High
Court of Nigeria agreed and ordered Shell and the Nigerian National Petroleum
Corporation “to take immediate steps to stop the further ¬‚aring of gas” in the
plaintiffs™ community.3 Although the court™s ruling thus far has had little practical

— Associate Professor, Temple University Beasley School of Law, 1719 N. Broad St., Philadelphia, PA
19122, Amy.Sinden@temple.edu, (215) 204“4969.
See The Climate Justice Programme & Environmental Rights Action/Friends of the Earth
1

Nigeria, Gas Flaring in Nigeria: A Human Rights, Environmental and Economic Monstrosity
(2005) [hereinafter Gas Flaring Report], available at http://www.climatelaw.org/media/gas.¬‚aring/
report/gas.¬‚aring.in.nigeria.html; Asume (Isaac) Osuoka, The Shell Report: Continuing Abuses in
Nigeria “ Ten Years after Ken Saro Wiwa 23“26 (Environmental Rights Action/Friends of the Earth
Nigeria 2005) (on ¬le with author) [hereinafter Shell Report]. Gas ¬‚aring produces both of the primary
greenhouse gases, carbon dioxide and methane. Gas Flaring Report, at 20; Intergovernmental Panel
on Climate Change, Climate Change 2007: The Physical Science Basis, Summary for Policymakers
4“5 (Feb. 2007) [hereinafter IPCC 2007 Summary], available at http://www.ipcc.ch/SPM2feb07.pdf.
Methane has twenty-one times the global warming impact of carbon dioxide. Most of the gas emitted
in a ¬‚are is burned, producing carbon dioxide from the combustion process. But the combustion
process is never 100 percent ef¬cient. As a result, some methane gas “ as much as 10 percent “ is
released directly into the atmosphere without combusting. See Gas Flaring Report, at 20.
See Gbemre v. Shell Petroleum Development Co., Suit No. FHC/CS/B/153/2005, Motion Ex Parte
2

under Section 46(1) of the Constitution of the Federal Republic of Nigeria, Statement Pursuant to
Order 1, Rule 2(3) of the Fundamental Rights (Enforcement Procedure) Rules, and Verifying Af¬davit
(July 11, 2005) [hereinafter Gbemre Pleadings], available at http://www.climatelaw.org/cases.
Gbemre v. Shell Petroleum Development Co., Suit No. FHC/CS/B/153/2005, Order (Nov. 14, 2005)
3

[hereinafter Gbemre Order], available at http://www.climatelaw.org/cases.

173
Amy Sinden
174


effect “ the oil companies have yet to comply and are appealing the order “ it opens
up intriguing possibilities for crafting legal approaches to the problem of climate
change.
Little analysis of the plaintiffs™ climate change claim accompanied the Nige-
rian court™s ruling, but the notion that actions that contribute substantially to cli-
mate change may violate fundamental constitutional or human rights is intuitively
appealing. Constitutional rights and international human rights “ I will refer to these
collectively as “human rights”4 “ invoke a sense of profundity and moral weight that
comports with the enormity and gravity of the climate change problem. In my view,
this intuition is correct. A right to security from climate change actually ¬ts com-
fortably within the principles and values that underlie some of the oldest and most
venerated rights in the civil and political rights tradition. Even though that tradition
was born more than 200 years ago, long before anyone could have conceived of the
idea that human activities might one day reach a magnitude and scope suf¬cient to
alter the environment on a global scale, the problem of climate change “ at least in
its political aspects “ is exactly the kind of problem that civil and political rights are
aimed at combating. It is a problem that arises fundamentally from the distortion of
government decision making by power.
Human rights, of course, have traditionally been de¬ned as imposing duties pri-
marily on States.5 And yet in many instances the af¬rmative acts that contribute most
dramatically to climate change are committed by private actors, as Shell™s involve-
ment in the Nigerian gas ¬‚aring illustrates. While the Gbemre court did not address
this issue, even under traditional doctrine, the close relationship between Shell and
the Nigerian government in the operation of the Nigerian National Petroleum Cor-
poration may well warrant a ¬nding of liability against Shell for acting in concert
with the State. Moreover, the recognition of rights in the context of climate change
may help build momentum toward a reconceptualization of human rights law that
broadens the set of duty holders to include not just States, but another set of impor-
tant actors on the international stage that often wield even more wealth and power
than States themselves “ multinational corporations.
This chapter proceeds in two parts. The ¬rst part provides some background on
oil development in the Niger Delta and the gas ¬‚aring litigation. The second part
explores possible theories under which a right to security from climate change might
be grounded in traditional civil and political human rights, as well as how such rights


Another action alleging human rights violations in connection with climate change has been ¬led
with the Inter-American Commission on Human Rights by Inuit Circumpolar Conference against the
United States. See Petition to the Inter-American Commission on Human Rights Seeking Relief from
Violations Resulting from Global Warming Caused by Acts and Omissions of the United States (Dec.
7, 2005), available at http://www.ciel.org/Publications/ICC_Petition_7Dec05.pdf. For a discussion of
that action, see Hari M. Osofsky, The Inuit Petition as a Bridge? Beyond Dialectics of Climate Change
and Indigenous Peoples™ Rights, in this volume.
See infra notes 57 to 60 and accompanying text.
4

See infra note 99.
5
An Emerging Human Right to Security from Climate Change 175


might be either traditionally applied or reconceptualized to impose liability on a
private multinational corporation like Shell.


1. BACKGROUND

1.1. Decades of Environmental Devastation and Military Repression
in the Niger Delta
Where the Niger River reaches the coastal plain on the south coast of West Africa,
it divides into hundreds of small streams and rivulets branching out across the ¬‚at
landscape. Covering 70,000 square kilometers, the Niger Delta is one of the largest
wetlands on Earth.6 For millennia, it has supported a rich and diverse ecosystem,
with one of the highest concentrations of biodiversity on the planet.7 It is also home
to over 10 million people from dozens of different ethnic groups, most of whom
depend on subsistence ¬shing and small-scale farming.8
However, the rich ecology of this region and its inhabitants™ way of life are now
in peril. In the 1950s, Shell and British Petroleum discovered oil in the Delta.9
Currently, 2.5 billion barrels of crude oil are pumped out of the Niger Delta each
day.10 While a number of big multinational oil companies now have partial stakes
in Nigeria™s oil industry, Shell remains by far the biggest player. Nearly half of
Nigeria™s oil is produced by the Shell Petroleum Development Company, a joint
venture operated by Shell and owned primarily by Shell and the Nigerian National
Petroleum Corporation (NNPC).11 Oil dominates the Nigerian economy, providing
more than 80 percent of government revenues, 90 percent of foreign exchange earn-
ings, and 40 percent of GDP.12 Three-quarters of Nigeria™s oil comes from the Niger
Delta.13



Ibibia Lucky Worika, Deprivation, Despoliation and Destitution: Whither Environment and Human
6

Rights in Nigeria™s Niger Delta?, 8 ILSA J. Int™l & Comp. L. 1, 4 (2001).
See Kaniye S. A. Ebeku, Biodiversity Conservation in Nigeria: An Appraisal of the Legal Regime in
7

Relation to the Niger Delta Area of the Country, 16 J. Envtl. L. 361, 362“65 (2004); Andy Rowell,
James Marriott & Lorne Stockman, The Next Gulf: London, Washington & Oil Con¬‚ict
in Nigeria 8 (2005); Ike Okonta & Oronto Douglas, Where Vultures Feast: Shell, Human
Rights and Oil in the Niger Delta 61“63 (2003).
Id.; Worika, supra note 6, at 4.
8

Gas Flaring Report, supra note 1, at 6; Rowell, supra note 7, at 58.
9

Gas Flaring Report, supra note 1, at 5.
10

See Rowell, supra note 7, at 9“10. Shell owns a 30 percent share, NNPC a 55 percent share, the
11

French company ELF-Aquitaine a 10 percent share, and the Italian company AGIP a 5 percent share.
See Okonta, supra note 7, at 49. Under the Nigerian Constitution, all oil is the property of the federal
government, so all oil companies operate in Nigeria as joint ventures with the NNPC. See Constitution
of the Federal Republic of Nigeria (1999), Art. 44(3); Alison Shinsato, Increasing the Accountability of
Transnational Corporations for Environmental Harms: The Petroleum Industry in Nigeria, 4 Nw. U. J.
Int™l Hum. Rights 186, 191 (2005).
See Rowell, supra note 7, at 9.
12

See Okonta, supra note 7, at 18.
13
Amy Sinden
176


Since Shell ¬rst struck oil there ¬ve decades ago, 159 oil ¬elds and 275 ¬‚ow stations
have been carved out of the fragile Delta ecosystem.14 Seven thousand kilometers
of rusty pipeline “ some of it forty years old “ snakes across the landscape.15 The
pipeline frequently ruptures, spewing crude oil across the land and water. According
to the Nigerian government, 6,817 oil spills occurred in the Niger Delta between
1976 and 2001 (about one a day for twenty-¬ve years). But other experts estimate that
the actual amount may be ten times higher.16 Even as of a decade ago, a report by
the CIA estimated that the amount of oil spilled in the Niger Delta was already ten
times the amount of the Alaskan Exxon Valdez spill.17
The spilled oil and the outdated waste disposal techniques practiced by Shell and
the other oil companies operating in the Delta have wreaked havoc on the health of
the people there and on the ecosystems upon which they depend. But spilled oil and
waste is only part of the environmental devastation oil development has brought to
the Delta. Oil deposits are often accompanied by natural gas that escapes from the
ground when the oil is pumped. Although it is possible to capture this escaping gas
and either reinject it into the ground or collect it for sale, the oil companies operating
in Nigeria choose instead to simply burn it off. Indeed, gas ¬‚aring has been standard
practice since oil production ¬rst began in Nigeria in the 1950s.18 Thus, most of the
oil wells in Nigeria are accompanied by a raging ¬‚ame that burns twenty-four hours
a day, reaching hundreds of feet into the sky, killing the surrounding vegetation
with searing heat, emitting a deafening roar, and belching a cocktail of smoke,
soot, and toxic chemicals into the air along with a potent mixture of greenhouse
gases.19 The devastating environmental effects of this wasteful practice have led other
countries to reduce gas ¬‚aring to a bare minimum. In the United States, less than
half of 1 percent of extracted natural gas is ¬‚ared;20 in Western Europe, the rate is
less than 1 percent.21 But the same multinational corporations that have virtually
stopped the practice in other parts of the world continue to ¬‚are 75 percent of the
natural gas produced in Nigeria.22 Because the amount of oil drilling conducted
in the Niger Delta is enormous “ Nigeria is OPEC™s ¬fth-largest producer of oil
and most of it comes from the Delta23 “ the absolute amount of gas being wasted
by ¬‚aring and the magnitude of the accompanying environmental destruction is
staggering. The Niger Delta produces 2.5 billion barrels of crude oil every day, and

See Tom O™Neill, Curse of the Black Gold: Hope and Betrayal in the Niger Delta, Nat™l Geographic,
14

Feb. 2007, at 88, available at http://www7.nationalgeographic.com/ngm/0702/feature3/index.html.
See Shinsato supra note 11; see also Okonta, supra note 7, at 77“78.
15

See O™Neill, supra note 14.
16

See Douglas Farah, Nigeria™s Oil Exploitation Leaves Delta Poor, Poisoned, Wash. Post, Mar. 18,
17

2001, at A22.
Shell Report, supra note 2, at 23“24; Okonta, supra note 7, at 66.
18

Rowell, supra note 7, at 67, 245; Okonta, supra note 7, at 73, 78“79, 84“85.
19

Shinsato, supra note 15.
20

See Peter Roderick, Environmental Justice, Climate Change, and Environmental Racism in the N´ger
±
21

Delta, available at http://www.foei.org/en/publications/link/env-rights/54.html.
See Gas Flaring Report, supra note 1, at 11.
22

See Shinsato, supra note 15, at 191.
23
An Emerging Human Right to Security from Climate Change 177


most of the associated 2.5 billion cubic feet of natural gas is burned off into the
atmosphere.24 In 2001, 40 percent of all the natural gas burned throughout Africa
was attributable to gas ¬‚aring in Nigeria.25 It is estimated that Nigeria™s gas ¬‚aring has
contributed more greenhouse gases to the atmosphere than all of sub-Saharan Africa
combined.26
Ironically, the global climate change to which gas ¬‚aring in the Niger Delta
makes such a signi¬cant contribution is likely to produce particularly devastating
impacts in Nigeria itself. The Intergovernmental Panel on Climate Change (IPCC)
has concluded that “Africa is one of the most vulnerable continents to climate
variability and change.”27 The Niger Delta itself is particularly vulnerable to sea
level rise. The low-lying marshy lands of the Delta have been gradually subsiding
in recent years, a process that has been signi¬cantly exacerbated by oil and gas
extraction.28 This subsidence in combination with the sea level rise predicted to
occur as a consequence of climate change is likely to cause widespread inundation
and dislocation. Studies have estimated that a forty-kilometer-wide strip of the Delta
could be inundated within decades and that 80 percent of the Delta™s population
will have to move.29 The IPCC reported in 2001 that a one-meter rise in sea level
could put 600 square kilometers of land and more than 3 million people at risk in
Nigeria.30 Additionally, increasingly frequent and severe storms triggered by climate
change could have devastating impacts. One study concludes that rising sea surface
temperatures off Nigeria™s coast have the capacity to trigger tornado-type storms in
the Niger Delta. Such storms are likely to cause “huge storm surges and catastrophic
¬‚ooding that will result in unprecedented deaths and collapse or destruction of
coastal infrastructure.”31
Although the dangers of climate change have only recently come to be widely
recognized, the people of the Niger Delta have long understood the devastating
impacts of the oil industry on their lands and waters. Beginning in the late 1980s,
protests against the oil industry in the communities of the Niger Delta met with


Gas Flaring Report, supra note 1, at 4“5.
24

Id.
25

Id.
26

IPCC, Climate Change 2007: Climate Change Impacts, Adaptation and Vulnerability, Sum-
27

mary for Policymakers 10 (Apr. 6, 2007) [hereinafter IPCC 2007 Impacts Summary], available at
http://www.ipcc.ch/SPM6avr07.pdf. The enumerated impacts include the risk of regional con¬‚ict
over dwindling water resources, declines in agricultural production, potentially irreversible losses
in natural resource productivity and biodiversity, risks of increased vector- and water-borne disease,
increased deserti¬cation, and ¬‚ooding of coastal areas due to sea level rise. Id.
See Rowell, supra note 7, at 235.
28

Id.
29

See Intergovernmental Panel on Climate Change, IPCC Special Report on the Regional Impacts
30

of Climate Change: An Assessment of Vulnerability, ch. 2.3.4.1.2, (1997) [hereinafter IPCC Special
Report on Regional Impacts] available at http://www.grida.no/climate/ipcc/regional/index.htm.
D. O. Adefolalu & J. F. Adeyemi, Climate Change: Potential Impact on the Niger Delta “ the Economic
31

Nerve-Center of Nigeria, International Conference on Energy, Environment and Disasters, Charlotte,
N.C., July 24“30, 2005.
Amy Sinden
178


increasingly brutal and violent repression by the Nigerian military.32 In the early
1990s in the Ogoniland region of the Niger Delta, Nigerian security forces killed
2,000 people and razed thirty villages in an attempt to quell mounting protests by
the Ogoni people against oil development in their region.33 There is evidence that
Shell played a major role in instigating and supporting this violence, supplying
helicopters and boats to transport the troops for these operations and paying bonuses
to the military personnel who participated.34 There is also evidence that Shell was
involved or complicit in the Nigerian government™s 1994 arrest and subsequent
execution of Ogoni political leader Ken Saro Wiwa in what was widely condemned
as a sham proceeding.35


1.2. The Gas Flaring Litigation
The events described previously received considerable publicity and triggered two
lawsuits alleging human rights violations in connection with the repression of
the Ogoni and the environmental destruction caused by oil development in
Ogoniland.36 But a series of lawsuits ¬led in 2005 in the Nigerian courts are the ¬rst
to focus speci¬cally on the practice of gas ¬‚aring in the Niger Delta. Seven cases have
been ¬led in various local divisions of the federal court system in Nigeria.37 In each

See Rowell, supra note 7, at 83“84. In 1987, Nigeria™s Military Police Force came to the small ¬shing
32

village of Ito at the request of Shell to quell protests, arriving in speedboats belonging to Shell. By the
end of the ensuing confrontation, the police had killed two demonstrators and destroyed forty houses,
leaving 350 villagers homeless. Id.
See Paul Lewis, Blood and Oil: A Special Report: After Nigeria Represses, Shell Defends Its Record,
33

N.Y. Times, Feb. 13, 1996, at A1.
See Douglass Cassel, Corporate Initiatives: A Second Human Rights Revolution?, 19 Fordham Int™l
34

L.J. 1963, 1965“66 (1996).
See Paul Lewis, Blood and Oil: A Special Report: After Nigeria Represses, Shell Defends Its Record,
35

N.Y. Times, Feb. 13, 1996, at A1; Douglass Cassel, Corporate Initiatives: A Second Human Rights
Revolution?, 19 Fordham Int™l L.J. 1963, 1966“67 (1996); Rowell, supra note 7, at 1“7. Two prosecution
witnesses recanted their testimony during the trial, claiming they had been bribed to provide testimony
implicating Saro Wiwa in the murders. In a ¬lmed statement and sworn af¬davit, one said that he
had been promised money and contracts with Shell to testify against Saro Wiwa and that Shell
representatives were present when the offer was made. Shell Denies Foul Play in Nigerian Murder
Trial, Guardian, Sept. 29, 1995, at 13.
One, ¬led in U.S. federal court in 1996 under the Alien Tort Claims Act against Shell, is still proceeding
36

in the trial court. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000). The other, ¬led
against the Nigerian government before the African Commission on Human and Peoples™ Rights,
resulted in a ruling that the environmental destruction of Ogoniland and the military repression of
the Ogoni people violated their rights to life, to nondiscrimination, to property and family, to health
and a satisfactory environment, and to the free disposal of wealth and natural resources under the
African Charter on Human and Peoples™ Rights. See Social & Econ. Rights Action Ctr. for Econ. and
Social Rights v. Nigeria, African Commission on Human and People™s Rights, Comm. No. 155/96
(2001), available at http://www1.umn.edu/humanrts/africa/comcases/155“96b.html; see also Justice C.
Nwobike, The African Commission on Human and People™s Rights and the Demysti¬cation of Second
and Third Generation Rights under the African Charter: Social and Economic Rights Action Center
(SERAC) and the Center for Economic and Social Rights (CESR) v. Nigeria, 1 African J. Legal
Stud. 129 (2005) (analyzing decision).
Conversation with Peter Roderick, Climate Justice Programme, July 28, 2006.
37
An Emerging Human Right to Security from Climate Change 179


one, the members of the local community as a class have sued the oil companies
engaged in gas ¬‚aring in their locality. Four of the cases name Shell as a defendant.
Chevron, the French company ELF-Aquitaine, and the Italian company AGIP are
also each named in one of the other suits. Each suit also names as defendants the
Attorney General of Nigeria and the Nigerian National Petroleum Corporation.
In each case, the plaintiffs allege that the defendants™ practice of gas ¬‚aring
violates their fundamental rights to life and dignity guaranteed under the Nigerian
constitution as well as their rights to life, integrity of the person, health, and a
satisfactory environment guaranteed under the African Charter on Human and
Peoples™ Rights.38 The basis for these claims is the damage to the environment and
the health of the local people caused by the air pollution and noise emitted by the
¬‚ares: Plaintiffs point to an “increased risk of premature death, respiratory illnesses,
asthma and cancer,” acid rain, and reduced crop production.39 But perhaps most
interestingly, plaintiffs also cite the contribution of gas ¬‚aring to climate change as
a basis for their constitutional and human rights claims.40
The ¬rst case was ¬led in the federal court in Benin City on July 11, 2005, by Jonah
Gbemre on behalf of himself and the Iwherekan Community in Delta State (the
“applicants”).41 It named Shell, the NNPC, and the Attorney General of Nigeria as
respondents.42 In their “counter-af¬davits” to Gbemre™s claims, Shell and NNPC
denied that they engaged in gas ¬‚aring in the Iwherekan Community and denied any

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