Friend or Foe? The U.S. Department's Conflicted Listing of Polar Bears as a Threatened Species under the Endangered Species Act
Forced by court order, the U.S. Department of the Interior (DOI) Secretary Kempthorne capitulated on May 14 and listed the polar bear as a threatened species under the Endangered Species Act (ESA). While acknowledging that the best science available predicts a continued steady decline in sea ice and that the threat to polar bears comes from global climate change and its effect on sea ice, the DOI took several steps to bar any action designed to reduce greenhouse gas emissions as a result of the listing. Sepcifically, Secretary Kempthorne announced plans to propose amendments to the ESA, which he characterized as one of "the most inflexible laws Congress has passed," and he ordered the Fish and Wildlife Service to issue guidance to its staff declaring that the best scientific data available today cannot make a causal connection between harm to polar bears and greenhouse gas emissions from a specific facility, or resource development project, or government action.
In addition, the DOI directed the U.S. Fish and Wildlife Service to issue a rule that would allow activities that are permissible under the Marine Mammal Protection Act (MMPA) to also be permissible under the ESA. Most controversially, the MMPA permits oil and gas drilling and exploration. Consequently, the DOI's recent listing and related directives could have inapposite results under the ESA—on the one hand, the DOI's actions would allow fossil fuel production in prime polar bear habitat, while on the other hand, they could potentially force the agency to protect the bears against the products of fossil fuel combustion, greenhouse gases.
You can read the full remarks by Secretary Kempthorne from the press conference on the polar bear listing May 14, 2008 here.
Posted by Jeanette C. Schuster, attorney practicing in the Real Estate & Land Use Practice Group.
