May 14, 2008 --- Vol. 14, No. 51May 2008

Secretary of Interior Dirk Kempthorne lists polar bears as threatened

Citing “the best available science” and the inflexibility of the Endangered Species Act, Secretary of the Interior Dirk Kempthorne said today he has accepted the recommendation of U.S. Fish and Wildlife Service Director Dale Hall to list the polar bear as a threatened species.

Kempthorne said the listing will be accompanied by “administrative guidance and a rule that defines the scope of impact my decision will have, in order to protect the polar bear while preventing unintended harm to the society and economy of the United States.”

Kempthorne said the decision is based on three findings: That sea ice is vital to polar bear survival; that polar bear sea-ice habitat has dramatically melted; and that computer models suggest sea ice is likely to further recede in the future.

“Because polar bears are vulnerable to this loss of habitat, they are, in my judgment, likely to become endangered in the foreseeable future — in this case 45 years.” The ESA defines endangered as a species in danger of extinction and threatened as a species likely to become endangered in the foreseeable future.

Kempthorne said he has accepted the science presented by the Fish and Wildlife Service and by the U.S. Geological Survey and has “also accepted these professionals’ best scientific and legal judgments that the loss of sea ice, not oil and gas development or subsistence activities, are the reason the polar bear is threatened.”

He noted that polar bears are already protected under the Marine Mammal Protection Act, “which has more stringent protections for polar bears than the Endangered Species Act does.” The oil and gas industry, he said, has been operating in the Arctic under the MMPA for decades “in compliance with these stricter protections.”

Kempthorne said while listing the polar bear can reduce “avoidable losses” of the bears, “it should not open the door to use the ESA to regulate greenhouse gas emissions from automobiles, power plants and other sources. … ESA is not the right tool to set U.S. climate policy.” To make sure the ESA “is not misused to regulate global climate change,” Fish and Wildlife will propose “what is known as a 4(d) rule that states that if an activity is permissible under the stricter standards imposed by the Marine Mammal Protection Act, it is also permissible under the Endangered Species Act with respect to the polar bear.” That rule takes effect immediately, he said.

Guidance will also be issued to Fish and Wildlife Service staff that “the best scientific data available today cannot make a causal connection between harm to listed species or their habitats and greenhouse gas emissions from a specific facility, or resource development project, or government action.”

He also said that “ESA regulatory language needs to be clarified,” and said the department will propose “common-sense modifications to the existing regulation to provide greater certainty that this listing will not set backdoor climate policy outside our normal system of political accountability.”

Note: See story in May 18 issue of Petroleum News, available to subscribers online at noon, Friday, May 16, at

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