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DC Court rules on polar bear rule Judge agrees that Fish & Wildlife can exclude greenhouse gas emissions from polar bear protection but says agency must do an EA Alan Bailey Petroleum News
Supporters of either side of a legal argument over the Endangered Species Act listing of the polar bear have claimed some element of victory following an Oct. 17 ruling from the U.S. District Court in Washington, D.C.
The court ruling came in response to appeals against a special ESA rule introduced by the U.S. Department of the Interior for the listing. That rule says that activities generating greenhouse gas emissions outside the polar bear’s range cannot be considered as harassment of the bears. The rule also says that the bears can be conserved under the terms of the Marine Mammal Protections Act. The loss of Arctic sea ice is seen as the main threat to the bears’ future wellbeing, with that ice loss being attributed by many scientists to climate change associated with human-generated greenhouse gases.
In the Oct. 17 ruling District Court Judge Emmet Sullivan rejected an argument put forward by environmental groups that the U.S. Fish and Wildlife Service must address greenhouse gas emissions as a consequence of the polar bear listing.
“Climate change poses unprecedented challenges of science and policy on a global scale, and this court must be at its most deferential where the agency is operating at the frontiers of science,” Sullivan wrote in his court order. “Here the agency concluded based on the evidence before it that section 4(d) of the ESA is not a useful or appropriate tool to alleviate the particular threat to the polar bear from climate change … and plaintiffs have offered no compelling evidence to the contrary.”
EA needed However, Sullivan has upheld another claim in the appeal, a claim that the Fish and Wildlife, by not conducting an environmental assessment for the introduction of the polar bear rule, violated the terms of the National Environmental Policy Act — the agency had argued that such rule making was exempt from NEPA. The court now requires Fish and Wildlife to conduct an environmental assessment for the rule, with a timetable for completing the assessment to be submitted to the court by Nov. 17.
“Today’s decision reinforces the position of the U.S. Fish and Wildlife Service that the ESA is not an appropriate tool to address greenhouse gas emissions,” said Sen. Lisa Murkowski in response to the court order. “The misapplication of well intentioned statutes carries the risk of serious consequences for our struggling economy.”
“The court’s decision confirms that additional protections under the ESA are unnecessary,” said Alaska Attorney General John Burns. “There was no sound reason to roll back those Marine Mammals Protection Act measures and rely on other untested programs on the North Slope or other areas within the polar bear’s range.”
Environmental groups have focused more on the court directive for an environment assessment, saying that this directive has in effect struck down the polar bear special rule.
“Today’s decision squarely places the fate of the polar bear back in the hands of the Obama administration,” said Brendan Cummings from the Center for Biological Diversity in response to the court ruling. “Rather than continue to defend an ill-conceived Bush-era rule, the Obama administration should take this opportunity to carefully craft a new rule that meaningfully addresses greenhouse gas emissions, the primary threat to the polar bear.”
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