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Polar bears and the Endangered Species Act
Alan Bailey Petroleum News
The May 2008 listing of the polar bear as threatened marked a pivotal point in the use of the U.S. Endangered Species Act as a tool to address the conservation of a species whose possible demise would result from global climate change, rather than resulting from some specific action, such as overhunting or the industrial destruction of habitat.
A multiyear trend of a shrinking Arctic sea ice extent would seem to put the polar bear under threat, given the animal’s dependence on the sea ice habitat to prey on seals, its main food source. And scientists place the blame for the Arctic sea ice decline on a rapid rise in global temperatures, resulting from the emission of man-made carbon dioxide and other greenhouse gases into the atmosphere.
Who is responsible? But if atmospheric carbon dioxide is threatening the polar bear, who can be held responsible for the adverse impacts of the gas on the animals? And, given the global nature of the greenhouse gas problem, what can the United State by itself do to ameliorate the problem?
Given these issues, the U.S. Department of the Interior under the Bush administration attempted to disconnect the application of the ESA from the climate change issue by modifying some of the ESA regulations. In effect, the agency said that the polar bear’s survival was threatened by climate change, while also saying that climate change could not be addressed under the ESA.
Specifically, DOI introduced changes to the regulations that apply to section 7 of the ESA, the section of the act that requires interagency consultation if some proposed activity might impact a listed species. The regulation changes took climate change out of the ESA equation by saying that individual activities that generate greenhouse gases cannot be individually linked to impacts on listed species; other changes relaxed the terms under which a government agency would need to consult with the U.S. Fish and Wildlife Service, the agency that administers polar bear conservation.
DOI, presumably conscious of the possible impact of the polar bear listing on Arctic industrial activity and subsistence hunting, also introduced a special rule that would apply to section 4(d) of the ESA, the section that mandates protective measures for a listed species. Under the special rule, the polar bear could be protected under the terms of the Marine Mammals Protection Act and the Convention on International Trade in Endangered Species, protections which already apply to polar bears and which are comparable or stricter than those in the ESA, DOI said.
After a public review period, DOI and the U.S. Department of Commerce published final rules for the ESA regulation changes on Dec. 16, 2008.
And the polar bear listing, its contentiousness heightened by the regulation changes, attracted a flood of lawsuits, some seeking tighter polar bear protections and others claiming that the polar bear listing was unwarranted.
Government change However, the changeover to the Obama administration in January, coupled with the Democrats’ control of the U.S. Congress, brought a new government perspective on environmental issues. In February Congress introduced a rider to the 2009 omnibus appropriations bill, to allow the withdrawal of both of the ESA regulation changes that had been issued in December.
Alaska Sens. Lisa Murkowski and Mark Begich tried to remove the rider from the bill, saying that Congress was, in effect, introducing regulation changes without subjecting those changes to a required public comment period, while running the risk of opening the floodgates to economically damaging environmental lawsuits.
“Withdrawal of the existing (section 7) rule could mean that any increase in carbon dioxide or any greenhouse gas, anywhere in the country could be subject to legal challenges asserting that those activities are harming a polar bear, or that there has not been sufficient consultation with the U.S Fish and Wildlife Service regarding activities that are funded, carried out or authorized by the federal government,” Murkowski said.
But the rider remained in the bill.
And on March 3 President Obama issued a memo addressing the Dec. 16 regulation change that relaxed ESA section 7 interagency consulting requirements, a change that had caused much angst among many ESA supporters.
In that memo the president instructed government agencies to review the December regulation changes and, meantime, to “follow the prior longstanding consultation and concurrence practices” involving the Fish and Wildlife Service and the National Marine Fisheries Service, the two agencies responsible for administering the ESA.
The ESA “reflects one of the nation’s profound commitments,” Obama said.
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