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High-Stakes ESA Fight Threatens Overseas Development

10/21/2013 Law360

Nossaman Partner Robert Thornton was quoted in the Law360 article "High-Stakes ESA Fight Threatens Overseas Development" regarding a lawsuit filed by environmental groups challenging U.S. funding of an Australian liquid natural gas terminal by arguing Endangered Species Act protections apply.  The Center for Biological Diversity, Pacific Environment and the Turtle Restoration Network are taking up the issue of whether detailed environmental assessments required under the ESA are also necessary for agency actions overseas.

The proposed facilities are located inside Australia's Great Barrier Reef World Heritage Area and threaten protected species, according to the groups.  Section 7 of the ESA requires that any action authorized or funded by federal agencies must not threaten the existence of species in peril but doesn't say if the requirement applies outside the country.

A victory in the case could require groups to consult with federal wildlife agencies before approving projects abroad, opening the door to numerous environmental challenges and making it more difficult for the government to provide financing.

Mr. Thornton noted, "It's clearly a major hammer.  It will give the relevant wildlife agencies a significant influence on [project decisions] and some level of regulatory control."

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