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Environmental Law

: ESA Blawg

Polar bears ? an unfortunate policy proxy.

By Keith Rizzardi

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Stakeholders continue to debate whether or not the Bush Administration should list the polar bear as a threatened species. See FWS proposed rule. But the reason for the intense discussion of this topic is the potential for the ESA's powerful procedures to be triggered. Consider this: if a Federal agencies proposes to issue a permit for a coal plant, or oil drilling -- even perhaps as far away as the Southeastern U.S. -- could the carbon footprint trigger enough impacts to the environment to require a consultation on potential effects to listed polar bears? Though some people would consider the question a complete absurdity, rest assured that the environmental community will raise the question, probably in a lawsuit. In fact, the front page of The Washington Post (12/27/2006) has already asked the question.

So now consider the follow-up questions: what would happen? What if FWS does consult with various Federal agencies related to a power plant or oil drilling and never reaches the global climate change issues, and potential effects on polar bears? Would it matter whether the action was in Alaska or the Everglades? What if environmentalists file suit? How could science parse the differential impact of that one power plant (compared to the planetary carbon emissions) and reach a conclusion as to potential effects on polar bears? The likelihood is that it cannot.

Maybe FWS's pace in acting is understandable, because after all, listing the polar bear under the ESA produces a no-win scenario for FWS. If FWS lists the polar bears, and then engages in expansive consultations, industry will inevitably challenge the resulting biological opinions as overreaching, claiming that they are arbitrary or capricious and relying on speculative data. If FWS lists the polar bears, but doesn't stretch the consultation concept to reach every possible emission, environmentalists will sue, citing whatever data they can find. Yet in either case, it is not unthinkable -- maybe even likely -- that an individual District Court judge could find the analysis insufficiently explained pursuant to the Federal APA, and on that basis, remand the biological permit (and thus delay the power plant) for further review. (And of course, if FWS doesn't list the bear, well, that's a lawsuit too.)

Sadly, the fact that this scenario seems so plausible is really a reflection on our complete lack of a national climate change policy. In a classic public administration article,"The Science of Muddling Through," Charles Lindblom suggested that policy-makers often default to incremental solutions to policy problems, instead of comprehensive approaches. That is precisely the problem in the arena of climate change. If our leaders had a better, comprehensive climate change policy, we wouldn't be worrying about manipulating the ESA to list (or not list) polar bears. But instead, once again, we can all expect the ESA and its procedures to be used (or in some minds, abused) as a proxy for a different agenda.

Polar bear and cub, from Scott Schliebe/USFWS

OTHER RESOURCES

For more on the polar bear debate, and its ESA consequences, visit:

Slate.com: Polar Bear Politics
Panel discussion on the ESA and polar bears
State of Alaska's comments opposing polar bear listing
Center for Biological Diversity "Save the Polar Bear" Report

For some great links on climate change, visit the following:

According to FWS's proposed rule to list the polar bear, several Federal agencies are expected to have involvement under section 7 of the Act regarding the polar bear:
The National Marine Fisheries Service may become involved, such as in instances if joint rule making for the incidental take of marine mammals is undertaken. The Environmental Protection Agency may become involved through its permitting authority for the Clean Water Act. The U.S. Army Corps of Engineers may become involved through its responsibilities and permitting authority under section 404 of the Clean Water Act and through future development of harbor projects. The MMS may become involved through administering their programs directed toward offshore oil and gas development. The Denali Commission may be involved through its potential funding of fuel and power generation projects. The U.S. Coast Guard may become involved through their deployment."

Full post as published by ESA Blawg on March 02, 2008 (boomark / email).