Constitutional Law

Thoughts on the Polar Bear listing

Interior just announced that it has ruled that the Polar Bear is a threatened species under the Endangered Species Act. The basis is that global warming is causing its habitat to contact. I did ESA work for nearly ten years at Interior, and have a few thoughts.

1. From the news reports, the ruling also bans bringing PB parts into the US, which will basically end trophy hunting. Now, you can allow hunting of a threatened species (which isn't as much at risk as an endangered one). I can't see why not here. The threat is loss of habitat, not shrinking of the population. It postulates that there are now about 25,000 bears, and in decades there won't be habitat but for a fraction of that. If the limit is habitat, hunting isn't going to change the population any.

2. The Secretary's speech sounds like he's trying to evade the inevitable, which is that any action even arguably affecting global warming will require extensive review by Fish and Wildlife Service. Here are the rules in a nutshell:

Any federal action that has any possibility of affecting a species requires a may affect/will not affect initial finding. Note the "may" versus the "will not." Any action that simply "may" affect a species require further analysis.

That takes the form of a biological opinion, done by FWS staff. A biologist/botanist, or a team of them, draws up a detailed study of the species and the effect the action will have on it. The conclusion must find whether the action will jeopardize the species with extiction (note that the term is jeopardize, not a certainty it will do so) or not. They must also map out reasonable alternatives to the action that would have less risk, and lay out modifications to the action that will reduce its impact. This generally requires a lot of study and writing: the biologists must get up to speed on the technical aspects of the action, which lay outside their training. If a jeopardy finding is made, the action is generally blocked. And in any event, the result is subject to challenge by lawsuit. And courts love to grant preliminary injunctions to stop it, since if the result is wrong it can lead to extinction.

Now, put into that mix a formal finding that global warming menaces a listed species. Any federal agency conduct that "may" affect global warming is going to require a biological opinion at the very least, and become a subject of a lawsuit. Oil imports, ethanol, building refineries, mileage ratings of autos, land with growing plants, etc.. The only real exemptions would be for legislation (which is not agency action) and where an agency has absolutely no discretion (down to inability to impose terms and conditions).

And that's just sec. 7(a)(2) of the ESA. There's also the ambiguous 7(a)(1) which requires agencies to use their powers to "conserve" (i.e., affirmatively try to bring back from endangerment) listed species, and sec. 10 which makes it illegal for anyone (not just a federal agency) to "take" a listed species. I forget now what the regulations say about how much habitat modification is required in order to "take" (kill) members of a species.

Essentially, welcome to years of global warming litigation! I doubt Interior has a tenth of the biologists it's going to need to do the biological opinions, or tenth of the attorneys it will need for the litigation.

UPDATE: My prediction was right on. It didn't take long. And that's just a suit against Interior (which would seem to run afoul of Lujan v. Defenders of Wildlife, except to the extent it challenges only listing as threatened rather than as endangered). Lujan held that you have to sue the agency taking the action, rather than sue Fish and Wildlife Service for not having stopped them.

Full post as published by Of Arms and the Law on May 20, 2008 (boomark / email).