A number of industry organizations (the “Association”), including the American Petroleum Institute (API) and the National Mining Association (NMA), have filed a motion to intervene in a pending lawsuit filed by the Center for Biological Diversity (CBD) against the Secretary of the Department of the Interior (Secretary) and the U.S. Fish and Wildlife Service (FWS).

In its initial complaint, the CBD alleged that the Secretary’s Listing Rule, which designates the polar bear as “threatened” instead of “endangered,” violates the Endangered Species Act (ESA). The ESA was enacted to protect species threatened with extinction by designating critical habits for such species. This designation involves special management considerations or protection formulated on the basis of scientific data, economic impact studies and other relevant impacts. The Association claims that an “endangered” and “critical habitat” designation for the polar bear would create immediate adverse economic consequences for its members, especially in Alaska, where imposition of special management considerations and protections will increase costs and potential delay in operations.

Additionally, the listing of the polar bear as "endangered" or "threatened" also effects greenhouse gas emissions in and around their habitat. Part of the Associations' motion to intervene reads that:

. . . by way of either their members companies’ own operations or projects that those companies supply that may emit greenhouse gases, thereby potentially triggering the requirements that flow from the Listing Rule and 4(d) Rule. These operations or projects could be subject to additional costly and time-consuming ESA requirements (in addition to MMPA requirements) or be subject to governmental enforcement actions or citizen suits if the Court grants Plaintiffs’ requested relief.

Under the ESA, the “taking” of an endangered species is prohibited. The term “taking” refers to harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, collecting or attempting to engage in any such conduct. Thus, the Association may be correct in its argument that its operations’ greenhouse gas emissions could constitute a “taking” with regard to the polar bears, should the court agree with the CBD and designate the polar bear as “endangered.” The motion was filed on September 4th.