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Among the moves Kempthorne announced was to propose a rule effectively melding protections under the endangered species law with those under the Marine Mammal Protection Act, which has governed actions relating to the animal so far. Officials cited what they called the marine mammal law's stronger wording protecting species.

Under the regulation, any activity permissible under the marine mammal law is also acceptable under the endangered species statute, with respect to the polar bear. The rule will allow "us to continue to develop our natural resources in the Arctic region in an environmentally sound way," Kempthorne said. He said federal wildlife officials had determined oil and gas development had not threatened the bears. 

Kempthorne also denied suggestions by environmental groups that the government had stalled on making the determination to avoid interfering with oil and gas lease sales in areas of the Arctic occupied by the bears, such as the Chukchi Sea (see Climate Law Update story here). Dale Hall, director of the U.S. Fish and Wildlife Service, which administers the endangered species law, said there was likely "very little additional requirement" that would come into play regarding oil and gas development in the region, given the fact that the "more stringent standard" of the marine mammal statute has already been in effect.

But environmentalists such as Siegel disagreed with that assessment. She noted that the marine mammal statute, for instance, does not have the same requirements for protecting an animals' habitat as does the endangered species law. She said the "whole reason the bear needs to be listed" is because the marine mammal law is not strong enough. Siegel added:

"That's why [the bear] needs the [endangered species listing]. It makes absolutely no sense to say you're going to reduce protections under the [Endangered Species Act] in order to be coextensive with the [Marine Mammal Protection Act]. It doesn't make sense and it's not legal." 

 At the same time, she said Wednesday's move was "absolutely" a step in the right direction. Other advocates of the listing echoed Siegel's mixed feelings.  Andrew Wetzler, an attorney and director of the endangered species project at the Natural Resources Defense Council, one of the plaintiffs in the lawsuit prodding the government toward the listing, had this to say, in a statement issued by environmentalists (see text here):

"The polar bear is already on thin ice. Protecting the polar bear under the Endangered Species Act is a major step forward, but the Bush administration has proposed using loopholes in the law to allow the greatest threat to the polar bear — global warming pollution — to continue unabated. If the key threats to the polar bear are not addressed soon, zoos will be the only place our grandchildren will be able to see a polar bear.”

But Kempthorne also found himself under attack from the right. In a statement Wednesday, Sen. James Inhofe, an Oklahoma Republican who is the ranking minority member of the Senate Environment and Public Works Committee, ripped the determination. Inhofe is a leading skeptic about global warming and he has noted that bear populations have actually increased in recent decades, a development Kempthorne also cited. Said Inhofe (see statement here):

“With the number of polar bears substantially up over the past forty years, the decision announced today appears to be based entirely on unproven computer models. The decision, therefore, is simply a case of reality versus unproven computer models, the methodology of which has been challenged by many scientists and forecasting experts. If the models are invalid, then the decision based on them is not justified. It’s disappointing that Secretary Kempthorne failed to stand up to liberal special interest groups who advocated this listing."

But California Sen. Barbara Boxer, the Democrat who chairs the committee, echoed the environmental groups in her reaction to the decision (see Boxer statement here):

"While the listing itself is welcome news, I am deeply concerned that the Administration's plan will deny the polar bear some of the key protections of the Endangered Species Act. The plight of the polar bear is a stark reminder that the planet is already experiencing the ravages of global warming. Today's announcement underscores how important it is for the Senate to pass national legislation to cut global warming pollution and avert the dangerous effects of climate change."

 (Photo: U.S. Fish and Wildlife Service, Susanne Miller)

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)