• Polar Bear Listed as "Threatened" under the Endangered Species Act
  • June 5, 2008
  • Law Firm: Troutman Sanders LLP - Atlanta Office
  • The US Dept. of the Interior (“DOI”) on Wednesday accepted the recommendation of the US Fish and Wildlife Service (“FWS”) and listed the polar bear as “threatened” under the Endangered Species Act (“ESA”), marking the first time an animal has been given ESA protection due to the impacts of climate change.  Secretary of the Interior Dirk Kempthorne hastened to emphasize, however, that “[w]hile the legal standards under the ESA compel me to list the polar bear as threatened . . . I am taking administrative and regulatory action to make certain the ESA isn’t abused to make global warming policies.”

    The FWS proposed listing the polar bear back in January 2007 based on concerns over the impacts of climate change on polar bear habitat.  In September 2007, the US Geological Survey (“USGS”) issued the results of nine studies on the future condition of the polar bear and its Alaskan habitat.  The studies showed up to a 97% loss in September sea ice by the end of the century and consequential possible extinction of the polar bear in the US within the next 45 years.  Under the ESA, the standard for designating a species threatened is a risk of becoming endangered in the foreseeable future throughout all or a significant part of its range, considering factors including habitat loss.  The new ruling accompanies a Canadian draft proposal to list polar bears as a species of special concern and a Memorandum of Understanding between the US and Canada for bilateral oversight of the polar bear.

    The FWS was under a court-imposed deadline to decide on the polar bear listing after missing a January deadline to do so.  In response to an April lawsuit filed by three environmental groups, the US District Court, Northern District of California, gave the agency until May 15 to issue a decision.  Petitioners alleged that the DOI was delaying issuance until the Minerals Management Service’s new offshore oil and gas leases in Alaska’s Chukchi Sea, home of two polar bear populations, were sold in February and finalized May 6.  DOI denied the allegations, pointing out that polar bear protection as part of the sale was already mandated under the Marine Mammal Protection Act.

    The listing will allow the imposition of regulations to reduce avoidable losses of polar bears.  Kempthorne insists, however, that “it should not open the door to use the ESA to regulate greenhouse gas emissions from automobiles, power plants, and other sources.”  To protect against this result, Secretary Kempthorne announced that the agency will take the following actions:

    First, “the Fish and Wildlife Service 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.  This rule, effective immediately, will ensure the protection of the bear while allowing us to continue to develop our natural resources in the arctic region in an environmentally sound way.”

    Second, FWS Director Dale Hall will issue guidance to FWS 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.”

    Third, the DOI “will issue a Solicitor’s Opinion further clarifying these points.”

    Fourth, DOI “will propose common sense modifications to the existing [ESA] regulation to provide greater certainty that this listing will not set backdoor climate policy outside our normal system of political accountability.”

    Exactly what implications Wednesday’s decision will have for US climate change policy remain uncertain.  However, industry representatives are concerned that environmental groups will attempt to use the listing as a means of impeding future energy and other projects throughout the country.  Several petitions for ESA protection of other arctic species threatened by climate change, including Pacific walruses, American pika, ribbon seal, and twelve species of penguins, have also been brought before the FWS this year.  What is certain is that continued fighting between environmental groups and federal agencies over the use of the ESA as a tool to combat global warming likely will continue.