Proposed Actions Involving GHGs Not Subject to ESA Consultation

On October 3, 2008, the Department of the Interior (“DOI”) issued a Solicitor’s Opinion concluding that proposed actions involving the emission of greenhouse gases (“GHGs”) do not meet the “may affect” threshold set forth in the regulations implementing the Endangered Species Act (“ESA”), and, therefore, these actions do not trigger the consultation requirements under section 7 of the ESA. In a separate action also on October 3, 2008, in a letter (“EPA’s Letter”) addressed to the Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”), the Environmental Protection Agency (“EPA”) sought concurrence with its conclusion that issuing permits under the Clean Air Act for activities emitting GHGs in amounts equal to or less than a modeled facility does not require section 7 consultation.