Environmental Law

Federal Government Calls Polar Bear Threatened but Limits Impact

By Dennis Pfaff and Kevin Livingston, Editors

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 to aimed at tackling global warming.

Environmental groups that had waged a multi-year battle to cover the animal under the Endangered Species Act offered limited praise for the determination. However, 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 (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. 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.

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)

Full post as published by Climate Law Update on May 14, 2008 (boomark / email).