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Polar bears, of course, remain listed under the ESA (see posts here, here, here, and here). Further, federal agencies are still required to consult with FWS where their activities may affect the polar bear because FWS recently revoked a Bush-era midnight regulation that, among other things, essentially eliminated the consultation requirement for GHG emissions. The 4(d) rule that FWS recently decided to retain intersects with consultation by eliminating the need for incidental take permits for certain activities that may cause a take -- most significantly, GHG emissions.

The broader effect of the 4(d) rule, in my view, is to firmly establish that FWS will not attempt to set climate change policy for the nation. The rule also avoids the potentially unmangeable issues that would be created if FWS had to approve all federally-authorized GHG emissions through the consultation process. While I support a strong reading of the ESA, as embraced in TVA v Hill, expanding FWS' authority to include a final say on all GHG authorizations takes us into uncharted territory.

FWS should be consulted on GHG issues, and biodiversity conservation must be a major consideration in the creation of national GHG policy. However, this policy will be more socially and politically tenable, I think, if it arises through a process that is more organic than FWS consultation. Ultimately, it seems impossible that FWS authority over GHG emissions would craft a lasting climate change policy. It would, instead, pressure Congress to create such a lasting policy. That pressure is already building, and the ESA faces a greater risk of being weakened if FWS asserts authority over power plants to protect the polar bear because Congress would be forced to address that question in crafting a new regime.

The ESA has a role at the intersection of climate change and biodiversity. It is a role that is not likely to be filled by any other statute or policy, and it is critical. The ESA is the strongest bit of ecocentric legislation in the U.S., and perhaps the strongest biodiversity legislation in the world. Its role during a phase of climate change is to ensure that other species are not left out of the adaption equation as we humans scramble to change our behavior. In other words, the ESA can call attention to the impacts of climate change through lisitings (as FWS may well do with the pika) and should preserve or create every available option for the polar bear and other climate-threatened species to survive the impacts of climate change. This is an important function that the ESA can fill, and perhaps serve as a model for the international level where a similar problem must be addressed.

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