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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)

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)