Bear's 'Threatened' Designation Generates Heat from Polar Opposites

Posted on May 19, 2008 by Dennis Pfaff

As far as Climate Law Update knows, no one has yet polled the polar bears on the U.S. Interior Department's decision last week to list them as threatened under the Endangered Species Act. But lots of other interested parties seem less than enamored with the action, and they're looking toward the courts to do something -- albeit for quite different reasons.

The latest rip comes from the Pacific Legal Foundation, a California-based nonprofit law firm that generally champions legal principles from a conservative perspective and is often critical of how the endangered species law is applied. On Monday, one of its top lawyers said the organization was moving toward filing a lawsuit to undo what he called a "purposeless listing" that nevertheless carried with it a potential to create legal mischief for a broad range of industries. Last week, Pacific Legal had also criticized the move (see press release here).

Interior Secretary Dirk Kempthorne's action to put the bear on the list, largely for reasons having to do with the melting of its icy habitat, "will, we believe, open the door for litigious activists to challenge industry for carbon emissions to the atmosphere," Reed Hopper, a principal attorney for Pacific Legal, told Climate Law Update. Said Hopper, who is based in Washington state: 

"You can expect attacks on oil and gas and utilities and refineries and manufacturers, housing and the like. Ultimately, we think that's going to drive up substantially the cost of housing and food and transportation."

Hopper's warning comes just a few days after environmental groups themselves launched their own legal effort to strengthen the federal government's action. Chief among their objections were efforts by the interior secretary to limit the impact of the listing decision (see Climate Law Update story here; access government listing documents here).  

Hopper also cited some of those same provisions, but from a different perspective, saying that his organization believes that "where there are sufficient regulatory mechanisms in place to protect the species" a listing under the endangered species act is not called for. In addition, he criticized the scientific basis for the decision.

But overall he said the federal agency won't have the final word how the polar bear designation would be interpreted; instead, that would rest with the courts. Kempthorne's "claims that the listing will not be used to bring lawsuits challenging industry is just wishful thinking," Hopper said.

Hopper also pointed to Kempthorne's statements suggesting the listing would not bring additional protections to the bear beyond what is already contained in a separate law, the Marine Mammal Protection Act. And, there was Kempthorne's "rather obvious" assertion that the endangered species listing would not stop global warming or the ice from melting.

"So we think a listing that does not address the purported threat is a purposeless listing not authorized by the act," Hopper said.  He said a final decision on moving forward with a lawsuit could come within a couple of weeks. 

Valerie Fellows, a spokeswoman for the U.S. Fish and Wildlife Service, the Interior agency most in charge of implementing the listing, said that the government long has been trying to deal with the "biggest misconception" surrounding the move, namely that it would have widespread repercussions in the larger arena of global warming. That's one reason why the formal documents enacting the listing contained explicit limiting provisions.

The courts have also interpreted the law in ways that would mean "it won't be used, it can't be used, as a tool to regulate climate change for polar bears," she said. Previous rulings in endangered species cases, Fellows argued, have demonstrated that to prove an animal was "taken" in violation of the endangered species law "you really have to have the evidence supporting the cause and the effect." She gave the example of trying to prove that a specific source of greenhouse gas emissions -- such as a plant in Kentucky -- was linked to a specific dead polar bear in Alaska.

"As of right now, science cannot make that direct link," she said.

As to some of the specific criticisms raised by the environmental groups late last week, Fellows said that a higher-level listing of "endangered" was not warranted for the bear because it is not expected to go extinct in the foreseeable future, defined as the next 45 years. It is, she said, expected to become endangered within that time, justifying the "threatened" listing. Fellows also noted that environmentalists themselves had first proposed the threatened designation, in a 2005 petition to the government (see full text of Center for Biological Diversity petition here).

In addition, Fellows said that no designation of "critical habitat" was made for the bear because of the complexities of the animal's environment. "It's an ecosystem that melts, it thaws, it moves. It's really a very complex ecosystem," she said.  Designating habitat, she said, would be one of the agency's next steps.

(U.S. Fish and Wildlife Service photo; Susanne Miller) 

 

 
Tags: , , , , , , , , , , , , , , , ,

Federal Government Calls Polar Bear Threatened but Limits Impact

Posted on May 14, 2008 by Dennis Pfaff

U.S. Interior Secretary Dirk Kempthorne, under pressure from the federal courts and environmentalists, Wednesday declared the polar bear threatened because of loss of its sea ice habitat. But he also acted to make sure the move wouldn't trigger broader efforts aimed at tackling global warming.

In addition, Kempthorne said the government would propose an approach that appeared explicitly to be intended to allow oil development to go forward in the Arctic without interference. Oil and gas drilling had been cited by environmentalists as a threat to the bear but Kempthorne disagreed. 

Environmental groups that had waged a multi-year battle to cover the animal under the Endangered Species Act offered strictly limited praise for the determination. They also issued none-too-veiled threats to continue litigating to beef up the protections. Activists had clearly hoped a listing could be employed in the broader fight against climate change and to provide more oversight over activities such as oil drilling (see Climate Law Update story here). 

"We're going to challenge any attempt to improperly reduce protections for the polar bear," Kassie Siegel,  a California attorney for the Center for Biological Diversity, told Climate Law Update. The group was one of the organizations that had won a court ruling last month demanding the government make a final decision on listing the bear under the endangered species law by May 15 (see Climate Law Update story here). A hearing in the case was scheduled for Thursday in federal court in Oakland, California.

Late in the day, the environmental plaintiffs fired their first legal shot (see court filing here). They accused the government of dragging its feet so much that the listing would not actually meet the May 15 deadline because it couldn't be published in the Federal Register by then. They also took issue with other parts of the government's action, including its failure to include protections for the bears' "critical habitat."   

Kempthorne made his announcement at a news conference in in Washington, D.C. (see press release here; text of Kempthorne statement here; access formal documents here). He cited the melting of the bear's icy habitat for his determination that the animal deserved protection under what he called "perhaps the least flexible law Congress has ever enacted." But Kempthorne added he was taking several administrative steps to "make certain the ESA isn't abused" to set policies to control global warming, such as controlling emissions from cars or power plants. That echoes a position taken by President Bush recently (see Climate Law Update story here).

Said Kempthorne:

"This decision may not be a popular decision; but I believe it is the right decision. I also believe it is right to put into place what tools I had available to me so we do not have the unintended consequences. We have seen that some have suggested that this will now be the opportunity to regulate greenhouse gases. It's not. This is not the tool." 

A listing of threatened is second only to a classification of endangered under the law. The bear becomes the first mammal to be granted protection under the statute for reasons related to climate change.

Kempthorne's decision drew criticism both from environmentalists and their allies in Congress but also from conservative critics of climate change science.

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)
Tags: , , , , , , , , , , , , , , , , , , , , , ,