On May 15, 2008, the Department of the Interior issued an Interim Final Special Rule designating the polar bear as threatened under the Endangered Species Act, based on its determination that global climate change, resulting from increased concentrations of greenhouse gases in the atmosphere, threatened to injure the bears' habitat by reducing polar ice. As part of this rule, the Department provided an exemption for greenhouse gas emissions, since they are part of a worldwide phenomenon that cannot be traced to particular activities in particular locations affecting the bears. This exemption applied to greenhouse gas emissions in all states except Alaska. On August 27, the NAM joined with the American Petroleum Institute, the U.S. Chamber of Commerce, the National Mining Association and the American Iron and Steel Institute in filing a complaint challenging the Department's omission of Alaska from the exemption. Manufacturing and other business operations in Alaska that may produce greenhouse gases should not be treated differently than those of companies in the other 49 states. This "Alaska Gap" exposed Alaskan operations to increased permitting burdens and/or the risk of enforcement by government authorities and citizen suits.
Our lawsuit challenged the Alaska Gap as arbitrary and capricious, since the best scientific data in the rulemaking record do not demonstrate enough of a connection between specific actions resulting in emissions and an effect on the polar bear.
The NAM supported the exemption for all states from permitting for greenhouse gas emissions that might affect polar bear habitat, not just every one but Alaska. The NAM was not challenging the decision to designate the polar bear as a threatened species.
On December 16, 2008, the Department of the Interior amended the rule to eliminate the "Alaska gap" carve-out provision, but implemented a more narrow carve-out. The business groups decided not to challenge the more narrow carve-out, and on April 6, 2009, stipulated that our complaint could be dismissed. In the stipulation order, the court recognized that the business groups were Defendant-Intervenors in both the Center for Biological Diversity case and the Defenders of Wildlife case, which involve other issues affecting polar bears. See the Center for Biological Diversitysummary for details on these combined cases.