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Uncertain future for polar bear listing Lawsuits challenge agency decisions while industry and North Slope communities wait to discover consequences of threatened status Alan Bailey Petroleum News
As an initial foray into the use of the Endangered Species Act to protect animals perceived to be facing difficulties as a consequence of climate change, the 2008 listing of the polar bear as threatened has become something of a cause célèbre in the annals of environmental conservation. But for those living and working in Arctic Alaska the listing has become a source of concern and uncertainty, as people speculate on how the listing may impact both community and industrial activity near or on the waters of the Beaufort and Chukchi seas.
Loss of sea ice The essential rationale behind the U.S. Fish and Wildlife Service’s decision to list the polar bear is the observed shrinking of the Arctic sea ice extent as the world’s climate warms. The polar bear, generally viewed as a marine rather than land mammal, has adapted to life on the Arctic ice pack, hunting for seals that must surface through holes in the ice cover.
And, although population data for the bears provide no evidence that the animals are in any immediate danger of extinction, Fish and Wildlife has used projections of a continuing decline in sea ice over the next 45 years to flag a significant threat to the species — hence the “threatened” designation.
Now, the bears having been listed, any activity possibly impacting the animals and also involving a federal action — typically involving some form of federal permit — can trigger the need for a consultation with Fish and Wildlife, with the possible subsequent imposition of mitigation measures for bear protection.
But recognizing that climate change and the consequent loss of sea ice are global problems, the U.S. Department of the Interior modified its regulations for the ESA, specifying that an activity that generates a greenhouse gas cannot be linked to impacts on listed species. Interior also introduced a special ESA rule for polar bears, saying that protection of polar bears under the terms of the Marine Mammal Protection Act and the Convention on International Trade in Endangered Species would suffice to meet the protection requirements of the ESA.
And supporters of the polar bear listing say that protection under the ESA will prevent or limit stress factors that might exacerbate the impact of the loss of sea ice habitat.
Lawsuits The polar bear listing triggered a flurry of lawsuits, with some arguing against the listing and others arguing that listing was not sufficiently stringent. A lawsuit in that latter category, claiming that the polar bear should be listed under the more restrictive status of “endangered” rather than just “threatened,” is still progressing through federal district court in Washington, D.C.
Under the terms of the ESA, a status of “endangered” means that a species is in danger of extinction throughout much or all of its range, while a “threatened” status means that a species is likely to become endangered in the foreseeable future. An endangered species is subject to tighter protections than a threatened species. For example, any form of harassment is generally prohibited for an endangered species while, for a threatened species, harassment can be allowed in some circumstances.
In the Washington, D.C., court case Judge Emmet Sullivan has ruled that the distinction between what is meant by “endangered” as distinct from “threatened” is unclear and ambiguous: In early November the judge ordered Fish and Wildlife to explain the legal distinction behind its listing of the polar bear as threatened. And on Dec. 22 Fish and Wildlife filed its response with the court.
No immediate threat Essentially, Fish and Wildlife told the court that it used the “threatened” designation because, although facing the incremental loss of sea ice, the polar bear is still a widespread species, not facing sudden and catastrophic threats. To be endangered, a species must be on the brink of extinction, while a listing as threatened implies endangerment to the species at some time in the future, the agency told the court.
Judge Sullivan has yet to respond to the Fish and Wildlife position. But the outcome of the court case really does matter — at the Law Seminars International Energy in Alaska conference on Dec. 6, Eric Fjelstad, a partner in law firm Perkins Coie, pointed out that an elevation of the ESA status of the polar bear to “endangered” would significantly limit the latitude with which the government could apply the ESA regulations, thus throwing into question Interior’s special polar bear rules regarding greenhouse gas emissions and the use of the Marine Mammal Protection Act.
Critical habitat The designation of more than 187,000 square miles of the Alaska Arctic offshore, Arctic barrier islands and Alaska’s northern coast as polar bear critical habitat has also triggered a storm of controversy. A critical habitat designation, a legal requirement of the ESA, involves both a specification of an area of territory and a specification of features within that territory that constitute the habitat — federal agencies have to prevent actions that would destroy or adversely modify the habitat.
In the case of the polar bear, on-land habitat consists primarily of areas used for denning and land used by the bears to walk between dens and the sea ice. Offshore, the habitat presumably consists of sea ice within the designated habitat area.
Critical habitat designations need to take into account the economic impacts of habitat protection but, claiming little impact on Arctic activities beyond the existing impacts of Marine Mammal Protection Act restrictions, Fish and Wildlife has argued that the only significant cost associated with the polar bear critical habitat designation would be the cost of some additional ESA consultations.
State to sue The State of Alaska, concerned about what it sees as the likelihood of much greater economic fallout from the habitat designation, gave notice on Dec. 21 that it intends to sue Fish and Wildlife over the designation.
“We already have state laws, the federal Marine Mammal Protection Act and international agreements that provide strong conservation measures for polar bears,” said Gov. Sean Parnell. “The polar bear is one of the most protected species in the world. The additional regulations and consultations and likely litigation that would be triggered by this habitat designation would simply delay jobs, increase the costs of, or even prevent, resource development projects that are crucial for the state.”
The state had already, in August 2008, sued Fish and Wildlife over the original polar bear listing — that court case has not yet been resolved.
And, so, uncertainty reigns on multiple fronts when it comes to the ultimate impact of the polar bear listing on Alaska communities, Alaska residents and the Alaska oil and gas industry. What kinds of mitigation measures will ESA consultations actually trigger? What will be the outcomes of the various court cases relating to the listing?
“There’s no doubt that the polar bear meets the statutory requirements for listing. … We think a recovery plan will help us be precautionary in the Arctic,” John Schoen, senior scientist in the Audubon Society, told the Resource Development Council of Alaska’s annual conference in November 2008. “We don’t see this as stopping oil and gas development.”
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