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Environmental Law

: ESA Blawg

Interior says no change in polar bear rule; new legislation, not the ESA, should regulate climate change

By Keith Rizzardi

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Earlier today, the U.S. Department of Interior announced that it would retain the Section 4(d) conservation rule for polar bears previously adopted in the waning days of the Bush Administration, see ESA blawg (Dec. 2008). But in a press release, DOI emphasized the need for comprehensive energy and climate change legislation. “To see the polar bear’s habitat melting and an iconic species threatened is an environmental tragedy of the modern age,” Secretary Ken Salazar said. “This administration is fully committed to the protection and recovery of the polar bear. I have reviewed the current rule, received the recommendations of the Fish and Wildlife Service, and concluded that the best course of action for protecting the polar bear under the Endangered Species Act is to wisely implement the current rule, monitor its effectiveness, and evaluate our options for improving the recovery of the species.”

The decision sounded, in some respects, like an oil industry soundbite, based on a quote of American Petroleum Institute President Jack Gerard in the Wall Street Journal. "The Endangered Species Act is not the proper mechanism for controlling our nation's carbon emissions," he said. Predictably, many environmental voices screamed, including Greenpeace Campaigner Ryan Patterson who told theWall Street Journal "This decision was a litmus test for the Obama administration's commitment to science-based development of global-warming policy. They failed miserably," The Center for Biological Diversity took an equally strident position. "Thank God for the courts," they told the The New York Times. But other environmentalists took a more moderate position, including John Kostyack, of National Wildlife Federation, who conceded to The Washington Post that it would have been difficult to tackle a massive problem like greenhouse gases through the endangered species bureaucracy. Still, litigation, as usual, was inevitable, as noted on the pages of this ESA blawg, and this one too.

Photo from biolaw a blog on law and the life sciences.

KEITHINKING: As I've written for over a year on the pages of this ESA blawg, the polar bear debate has served as a policy proxy for the lack of a national climate change policy. In this respect, today's decision seems somewhat reasonable. Put simply, given the current state of the science, it would prove impossible for FWS to use the ESA in the manner anticipated by groups like CBD. The analysis is too attenuated. For example, in a biological opinion on the polar bear, FWS would first need to determine the degree to which a proposed federal action on a power plant in the Southeast might affect climate change, and then calculate much the climate change might affect a polar bear, ultimately reaching a decision as to whether the power plant would, or would not, jeopardize the continued existence of the polar bear. In some respects, this is like law school, and torts 101. Defendants car struck Plaintiff, who sustains non-fatal injuries. On route to the hospital, Plaintiff dies in the ambulance when an earthquake causes a poorly constructed building to crush the vehicle. Is Defendant responsible for the wrongful death? Yes, there is a degree of "but for" causation, and yes, even a link in the chain of causation... but common sense says that the car crash didn't kill the Plaintiff, and the southeastern power plant didn't kill the polar bear.

In my opinion, more action on polar bears, climate change, and greenhouse gas emissions is absolutely necessary and appropriate, and Congress should act. Any other alternative is ugly. If Congress does not act, or if CBD prevails and the current structure of the ESA becomes our only national tool for administering climate change policy, then the result will be that FWS (and NOAA) must declare jeopardy for every action that increases greenhouse gases, based on the potential affects to polar bears (and perhaps any other species struggling with the effects of climate change.) So, while the thinkers at biolaw declared today The day the ESA died, I think that the opposite decision -- using the ESA as a climate change tool -- could also have marked the death of the ESA, in the form of a complete rewriting of the statute. Either way, change is coming...

Full post as published by ESA Blawg on May 08, 2009 (boomark / email).