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Wilken rejected a request by the government that would have pushed the effect of any final decision to protect the animals under the law until about Aug. 1. The government had wanted to wait to issue any decision until June 30 and then to allow another 30 days before it actually took effect. At the same time, federal officials had agreed that the environmental group's motion requiring action should be granted -- but disagreed on the timing.

The judge, who sits in Oakland, Calif., however, didn't buy any of the arguments asking for more time:

"Other than the general complexity of finalizing the rule, defendants offer no specific
facts that would justify the existing delay, much less further delay. To allow defendants more time would violate the mandated listing deadlines under the [Endangered Species Act] and congressional intent that time is of the essence in listing threatened species."  

She also found that the endangered species law would be much more protective of the bears than another federal statute, the Marine Mammal Protection Act, because the former law also covers the bears' habitat. Federal officials had argued that the marine mammal law would give the bears adequate coverage while a decision was pending on whether to extend endangered species protection to the bear.

Wilken also noted a rule had been proposed to exempt oil industry operations in part of the bears' habitat, in the Chukchi Sea region of the Arctic Ocean, from the marine mammal law's prohibition against harming protected animals. 

In addition to the Center for Biological Diversity, other plaintiffs in the case include the Natural Resources Defense Council and Greenpeace.

(Photo: U.S. Fish and Wildlife Service)

Wilken is presiding over a lawsuit brought by environmental groups who contended that the government, as a result of prior litigation, was supposed to have formally issued its decision by Jan. 9 (see text of lawsuit here; see Climate Law Update story here; ). More recently, the environmentalists filed a summary judgment motion asking Wilken to order officials to act within a week of the next hearing on the matter, now scheduled for May 8 (see motion here).

In court filings Thursday, Justice Department lawyers representing Interior argued that Wilken should grant the plaintiff’s motion – but “adopt the [wildlife] service’s proposed deadline of June 30, 2008 for submission of the final listing determination for the polar bear to the Federal Register.” The government acknowledged that as far back as December 2006 officials had proposed listing the bear as threatened. Additional studies were ordered, however, and a draft decision is now in the hands of Lyle Laverty, the department’s assistant secretary for fish and wildlife and parks. Laverty “anticipates a final listing decision will be completed” by the June date, the department's lawyers wrote.

They also asked the court to allow the decision to go into effect 30 days after its publishing in the register, meaning no protections would kick in until about Aug. 1. The filing noted that 670,000 public comments have been received on the issue.

“The assistant secretary must ensure that the final determination has addressed the public comments, is supported by the best available scientific and commercial data, and is legally sufficient,” the government attorneys wrote. Additionally, they argued that a 30-day waiting period “will have a negligible effect” on the bear, which they contended is adequately covered in the short term by the Marine Mammal Protection Act.

The move came barely a day after President Bush warned against attempts to use the endangered species law and other federal statutes to prod action on climate change (see Climate Law Update story here).

Kassie Siegel, an attorney for the Center for Biological Diversity, one of the plaintiffs in the lawsuit, told Climate Law Update the government has handed out oil and gas leases in the region and is also issuing permits for related seismic exploration. Officials, she charged, do not want to go through the additional steps “on any of that stuff” that they would be required to take if the bear were listed. The plaintiffs also issued a written statement criticizing the administration (see text here). 

In a statement (see text here), the Sierra Club, which is not a plaintiff in the case, charged that the government’s delay has “allowed just enough time for the Interior Department to open polar bear habitat to oil drilling.” It added that seismic tests in the Chukchi Sea, a part of the Arctic Ocean, could begin this summer.

Shane Wolfe, an Interior Department spokesman, told Climate Law Update Friday that the court filings, including a sworn statement from Laverty, would speak for themselves “because there’s a lot of information” in them. He added, however, that the Chukchi Sea lease sale had been “long-scheduled” and constituted only a “very early step in the process of producing oil and natural gas.” He pointed to Laverty’s court declaration, which noted that the government had previously determined that oil and gas development, among other potential dangers, “do not threaten the polar bear throughout its range.”

In light of that finding, Wolfe said Interior Secretary Dirk Kempthorne has argued that to cancel the lease sale “would really say that what we said [earlier] wasn’t true.” 

(Photo: Steve Hillebrand, U.S. Fish and Wildlife Service)

Bush also expressed concern over efforts to employ existing laws, such as the Endangered Species Act and the Clean Air Act to tackle the problem. Environmentalists have been trying to prod action with the species law (see Climate Law Update stories here and here). California, and by extension other states, want to use the air law to control climate-changing emissions from cars but they have been thwarted by Bush administration officials (see Climate Law Update story here). In addition, the U.S. Supreme Court has required the U.S. Environmental Protection Agency to consider whether to regulate greenhouse gases as air pollutants under the law (see Climate Law Update stories here and here).

Bush, in his speech Wednesday, predicted the application of those laws could have widespread intrusive effects, forcing the federal government to "act like a local planning and zoning board, [having] crippling effects on our entire economy." 

The president, who has opposed such international treaties as the Kyoto Protocol, said that "all major economies" must take action to make a dent in the problem. He then suggested the United States would be willing to enter a new pact:

"Like many other countries, America's national plan will be a comprehensive blend of market incentives and regulations to reduce emissions by encouraging clean and efficient energy technologies. We're willing to include this plan in a binding international agreement, so long as our fellow major economies are prepared to include their plans in such an agreement."   

Congressional critics of Bush also quickly ripped the president’s stance. U.S. Sen. Barbara Boxer, the California Democrat who chairs the Senate Committee on Environment and Public Works, issued a statement (see text here) saying Bush’s “plan to have America stand by while greenhouse gases reach dangerous levels and threaten America and the world is worse than doing nothing – it is the height of irresponsibility.” Although greenhouse gas emissions have shown some decreases lately in the United States (see Climate Law Update story here), officials estimate they have grown nearly 15 percent since 1990 (access latest inventory here).   

Others, meanwhile, reacted more cautiously. Sens. Joseph Lieberman, I-Conn., co-sponsor of legislation that would limit greenhouse emissions and set up a trading program to help control them, said he shared the president’s preference for a market-based approach over the imposition of new carbon taxes. Lieberman said he did not believe Bush’s statement would hamper the chances of the bill he and Sen. John Warner, R-Va., are sponsoring. The measure is expected to come before the Senate in June (see text of legislation here), .

Warner, in the same statement, said the president’s support for “measures to reduce greenhouse gas emissions in the U.S. is welcome news as the Senate prepares to consider climate change legislation this summer.” Warner also praised Bush's call for an international approach to the issue (see full text of statement here).

(Photo credit: White House)

Theoretically, an eventual placement of the animals on the list could lead to restrictions on a number of the local activities, as well as adding the agency as a regulatory player in combating climate change. The endangered species law contains provisions mandating that “federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this act.”

Under the law, regulators throughout government are supposed to consider potential impacts on endangered species when carrrying out their duties. That means, for one, consulting with colleagues in the wildlife regulatory agencies. It's a wide net that environmentalists believe should be used to cover government activities such as issuing permits for power plants or new highway construction.

Cummings said the seals face a "double-barreled threat" both from local development, such as oil and gas projects, and from greenhouse gas-related global warming. He noted that new threats to the animals might also develop as the ice disappears, allowing for shipping lanes to open and for additional fisheries to develop.

"It's being viewed as the new gold rush," he said. A listing of the seals would give the creatures some additional protections if the new developments occur.

But he said there would also have to be efforts to curtail emissions of greenhouse contributors such as carbon and methane.

"If we don’t stop global warming, there’s not much we can do for these species,” said Cummings, whose office is in Joshua Tree, California. He noted, for instance, that unlike some other marine mammals such as the walrus that can use dry land as a habitat of last resort, the ribbon seal is never seen on land.

In addition, he said other issues need to be examined “pro-actively,” including the impacts of an ocean fishery that may be shifting geographically northward along with warming waters.

A listing by the fisheries service would also engage an agency, which is housed in the U.S. Commerce Department's National Oceanic and Atmospheric Administration, that the environmental group feels has been historically more responsive to endangered species considerations than its sister bureaucracies. That latter category includes the Interior Department’s Fish and Wildlife Service, with which the organization has repeatedly tangled.

Part of the goal, Cummings said, is to “get [the fisheries service] involved in species management in a changing climate.”

Doug Mecum, acting administrator for the fisheries service’s Alaska region, was reluctant to predict what would result if the seals were to be listed.

“We’re kind of a long ways away from determining what, if anything, might be done,” he told Climate Law Update. He acknowledged, however, that “it’s kind of mind-boggling given the potential scope” of actions that theoretically could be implicated.

At the same time, Mecum suggested his agency’s specific authority had limits.

“I think that first and foremost you look at things under your immediate control,” he said. For example, the agency has since the early 1990s listed some part of the Stellar sea lion population as threatened and others endangered, and officials have identified threats to animals as  diverse as killer whales because of climate change and issues related to the commercial fishing industry. He said the agency has little it can do about the first two and so it has concentrated on regulation related to the fisheries (see recovery plan here).

When it comes to the seals, he said, one thing to look at would be finding ways to mitigate the impact of oil and gas development in their habitat.

On the larger issue of how multiple government agencies would deal with species found to be threatened by climate change, Mecum said he “wouldn’t hazard a guess” about what the future holds.

“This is pretty much new ground we’re breaking here,” he said.      

Clearly, organizations such as Cummings’ intend to press the issue. The Center for Biological Diversity has targeted global warming’s alleged effects on a number of cold-climate animals, including the polar bear and the Pacific walrus, in addition to the seals. It recently joined with other environmental groups to sue the fish and wildlife service (see Climate Law Update story) to prod some action out of the agency on listing the bears. The group has also sent the agency a formal request (see press release and petition) to protect the walrus under the endangered species law.  Regarding more temperate regions of the world, the group successfully pushed the fisheries service into listing two species of Florida and Caribbean coral as threatened because of global warming, and designating "critical habitat" for the invertebrates (see press release).

But traditional wildlife agencies aren’t the only ones facing the group’s legal assault. Attorneys for the organization recently enlarged a lawsuit against the U.S. Department of Energy regarding that agency’s designation of new power transmission line corridors. The lawsuit claimed officials allegedly failed to consider the impacts on endangered species, specifically by not going through the inter-agency consultation process (see lawsuit and Climate Law Update story). In addition, the environmental group in 2007 won a federal appeals court ruling against the U.S. Department of Transportation that just last week produced action to begin considering global warming when setting fuel economy standards for light trucks and sport utility vehicles (see Climate Law Update story).

(Photo of ribbon seal courtesy of NOAA) 

According to the two earlier lawsuits, the designation of the Southwest corridor affects an area of 70,000 square miles in California and Arizona, while the Mid-Atlantic region covered by the department’s action includes “broad areas” of eight states and the District of Columbia.

The new move to the 9^th Circuit came after federal officials argued in the Pennsylvania case that such challenges could only be brought in the appeal courts. Although the initial filing in the appeals court did not include details of the plaintiffs’ allegations, a public statement from the organizations involved in the case outlined a number of objections, including the department’s alleged failure to fully consider public comments and alternatives.   

The cases stem from the department’s decision last October to designate the two corridors. The latest lawsuit came shortly after the department earlier this month denied requests to reconsider the order (see DOE press statement here).

Areas within the corridors could be subject to jurisdiction by the Federal Energy Regulatory Commission under the energy policy law, according to energy department documents.

“In practice, this will mean that if an applicant does not receive approval from a state to site a proposed new transmission facility within a national corridor, the applicant may then apply to FERC for a permit and authorization to construct the facility,” the energy department said in an information packet distributed at the time of the October decision. Once granted a permit, a builder could also use the power of eminent domain to acquire property rights for the lines, except if the land is owned by the state or federal governments, the department said.

Opponents of the department’s move saw numerous problems with it. The Pennsylvania lawsuit, charged, for instance:

“As a result of the Order, proposed utility and transmission line projects
within the Corridor will be subject to “fast-track” federal approval, bypassing
state-level processes for locating transmission infrastructure, overriding federal
environmental laws, and enabling federal condemnation of private land and
diversion of public land for new high voltage transmission lines.

By facilitating utility right-of-way creation and transmission line construction without a detailed analysis of the associated environmental impacts and without full consultation with the appropriate resource and land management agencies, DOE’s proposed corridor designation will have avoidable impacts on ecosystems, wildlife habitats and populations, historic resources and water quality.”

Anjali Jaiswal, an attorney for the Natural Resources Defense Council, one of the groups bringing the 9^th Circuit lawsuit, said the case was not about stopping transmission projects:

“We recognize the need for increased investment in transmission solutions across the country. But we need to ensure that these transmission corridor designations take place in compliance with federal environmental law.”

The lead plaintiff in the case was the Wildnerness Society. The California Wilderness Coalition also joined the litigation. 

In its public statement released at the time of the rehearing denial, the energy department said it had “dismissed without merit” challenges raised by those seeking a new look at the decision. It also asserted that a number of federal statutes, including those cited in the lawsuits, were “not applicable” to the decision to designate the corridors. Rather, reviews under those laws would be conducted by FERC before issuing any construction permit.

Julie Ruggiero, a spokeswoman for the energy department, said Wednesday that the designation of the corridors "in and of itself has no environmental impact and instead shines a spotlight on areas of the country that are experiencing congestion and constraint." She said the department had also provided "all interested parties with fair and ample opportunities" to give their views.

Last month, the federal attorneys representing the energy department moved to dismiss the Pennsylvania case, arguing such challenges could only be heard in the court of appeals.

(Photograph of transmission lines in Oregon courtesy Department of Energy)

The new lawsuit painted the bears’ situation as dire:

"Polar bear populations are already declining due to global warming. Individual polar bears have drowned, starved, and even resorted to cannibalism as global warming transforms the Arctic. The U.S. Geological Service (“USGS”) projects that two thirds of the world’s polar bears will be extinct by 2050 if “business as usual,” emissions trends continue, and that the world’s remaining bears will face an over 40 percent risk of extinction by century’s end. The USGS projections may be overly optimistic, as they are based on modeling results of sea-ice decline that have underestimated the ice loss to date."

It also noted that while the bears’ global population is estimated at between 20,000 and 25,000 animals, numbers have been dwindling in certain regions, including the western Hudson Bay region and in the southern Beaufort Sea.

Endangered Species Act listing would trigger a number of protections for the animals. A big impact could come from a section of the law that requires other federal agencies to consult with the Interior Department when they are considering authorizing activities that might jeopardize protected species or adversely affect their habitat. In the case of an animal listed because of global warming, that could mean decisions as disparate as those relating to offshore oil drilling, highway construction, coal-fired power plants, federal fuel economy standards and industrial air pollution permits could be opened to new scrutiny, no matter where they are located, according to Siegel. The agencies would have to look at ways of reducing the harm to the animals, she said.

“Any federal agency that is authorizing a major source of greenhouse gas emissions would have to analyze the cumulative effects of those greenhouse gases on polar bears,” Siegel said. However, she said the law would give some discretion to the agencies to determine which projects would qualify.

The Natural Resources Defense Council and Greenpeace also are plaintiffs in the lawsuit. In the groups’ statement announcing the court action a Greenpeace official said the federal government recently had initiated lease sales to drill for oil in the Chukchi Sea, a part of the Arctic Ocean he called "pristine polar bear habitat." The official, Kert Davies, called on the Bush administration to cancel the sales and “immediately implement a plan for deep cuts in U.S. global warming pollution.”

Siegel, in an interview with Climate Law Update, said listing a species under the law would not provide the entire solution for global warming. However, she said: “We need to be analyzing solutions in all possible contexts.”

Determining such issues as when the inter-agency reviews would have to take place and in what manner they would be carried out would be “some of the bigger questions that have to be answered” if the bear is listed, said Wildlife Service spokeswoman Valerie Fellows.

Some environmental organizations, Felllows said, “have been very vocal about their intention to use [a polar bear listing] as a regulatory tool to control greenhouse gases.”

She characterized other considerations under the law, such as whether an animal is “taken” (i.e., harmed), in much narrower terms, and requiring a high level of scientific proof to demonstrate. The science, she said, "would have to be so evolved that you would have to point to the car that would be related to the animal that died."

Fellows would not speculate on when a final decision on the bear would be issued. In January, Wildlife Service noted it was studying the issue in light of information on sea ice trends and bear populations coming from another federal agency, the U.S. Geological Survey.    

 In 2006, the federal government’s National Marine Fisheries Service listed two species of coral for protection under the endangered species law, partly for reasons related to global warming. Environmentalists have also sued to push similar listings for numerous species of penguins (see news release and lawsuit here). In addition, they want to see climate-related protections for the Pacific walrus and, in California, the  mountain-dwelling American pika (see press statement here), a small mammal.

Recently a lawsuit was filed in federal court in San Francisco against big energy companies for their alleged roles in causing global warming damage to Kivalina, a native Alaskan fishing village.

(Polar bear mother and cubs: Wikipedia photograph)