Intellectual Property Law

A regulatory train wreck

By Jim Chen et al.

The threat that global warming, and the resulting loss of sea ice, poses to the continued existence of the polar bear prompted a lawsuit from Greenpeace, in conjunction with the Center for Biological Diversity (logo at left), and the Natural Resources Defense Council, alleging that the United States Fish and Wildlife Service (FWS) was violating the Endangered Species Act (ESA) by failing to protect the polar bear and its habitat. The Center had first petitioned the Department of Interior in 2005, requesting that the polar bear be listed as "threatened." Under ESA § 1532(5)(C)(20), a species is "threatened" whenever it is "likely to become an endangered species within the foreseeable future through all or a significant portion of its range." Despite a statutory deadline requiring action within 90 days, years passed with no decision about the polar bear.

Footdragging at the Agency

In 2006, in response to a lawsuit challenging FWS?s inaction, the Department made a preliminary finding that catastrophic climate change is destroying polar bear habitat.
Thus, on January 9, 2007, FWS published a proposed rule in the Federal Register listing the polar bear as threatened. The ESA requires that listing decisions be made within one year of publication of the proposed rule. Nonetheless, Interior failed to meet the January 9, 2008, statutory deadline for making a final decision. Why? Maybe because another agency within the Department of Interior, the Minerals Management Service, (MMS) is busy issuing oil and gas leases for vast portions of the polar bears' remaining habitat. Indeed, on January 2, 2008, just days before FWS was supposed to list the polar bear, MMS published the Final Notice of Intent for the Chukchi Lease Sale 193, which will open to oil and gas activities 29.7 million acres of the pristine Chukchi Sea, situated in the Arctic Oean between Russia and Alaska.

Evidence continues to mount that loss of habitat is threatening the continued existence of polar bears. Indeed, a recent MMS study documents that polar bears are drowning as a result of record low sea ice levels off the coast of Alaska.

Judge Wilken acts
Condemning the delays as unreasonable, Judge Claudia Wilken of the U.S. District Court for the Northern District of California, San Francisco, found for the environmental groups on all issues. She ordered the administration to publish its final decision on polar bear status in the
Federal Register by May 15. Reflecting the urgency surrounding the question, Judge Wilken also ordered that the decision take effect immediately, invoking an exception to the ordinary 30-day waiting period before an administrative rule takes effect.

Last month, White House Press Secretary Dana Perino (left) claimed that the lawsuit was "inappropriately" trying to use existing environmental laws, like the Endangered Species Act and the Clean Air Act, to address climate change. The result, Perino said, would be a "regulatory train wreck."

While it is certainly true that the polar bear listing will be the first time global warming will be officially labeled a species' main threat, this statement is outrageous.

The Executive Branch has a constitutional duty to ?take care that the law be faithfully executed.? It is the administration?s do-nothing policy is the regulatory train wreck.

The failure to list the polar bear is not only ?inappropriate,? it is inexcusable.There is no dispute that global warming is threatening polar bear habitat. Kudos to Judge Wilken for forcing much needed regulatory action!

crossposted at intlawgrrls.blogspot.com

Full post as published by Biolaw Blog on May 02, 2008 (boomark / email).