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A (Polar) Bear of a Problem:

Last week, the Interior Department announced its decision to list the polar bear (Ursus maritimus) as a "threatened species" under the Endangered Species Act due to the expected loss of polar bear habitat, specifically arctic sea ice, due to global warming. The listing decision and other related documents are available here. This is the first time a species has been listed under the ESA due to climate change, but it might not be the last. More significantly, the polar bear listing could become a powerful weapon for environmental groups seeking more stringent controls on greenhouse gas emissions, as I discuss in this NRO column.

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Polar Bear Panel at AEI:

On Monday I will appear on a panel at AEI in Washington, D.C. to discuss the legal and other implications of the Interior Department's decision to list the polar bear as a "threatened" species under the Endangered Species Act. Joining me on the panel will be Bryan Arroyo, Assistant Director for the Endangered Species Program for the Fish & Wildlife Service. AEI's Ken Green will moderate. Details about the event are here.

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"An Animal to Save the World":

Lawyers at the Center for Biological Diversity spent years looking for "an animal to save the world." Their criteria: A charismatic animal dependent upon arctic ice habitat threatened by global warming that could be listed under the Endangered Species Act. The Kittlitz's murrelet didn't cut it, nor did an arctic spider or Carribean coral species. The polar bear, however, is another story. This year the polar bear joined the nearly 2,000 species listed as threatened or endangered under the ESA, and instantly became the new mascot for global warming policy. The question now is whether the polar bear will be more than just a symbol.

I discussed this issue yesterday on a panel at AEI with Bryan Arroyo, assistant director for the Endangered Species Program at the U.S. Fish and Wildlife Service. If a video or transcript of the event become available, I will post a link.

Arroyo and I agreed on many of the legal implications of the polar bear listing. For instance, listing the polar bear as "threatened" triggers its classification as a "depleted species" under the Marine Mammal Protection Act (MMPA). This means an immediate ban on the importation of sport-hunting trophies from Canada. Why does this matter? Because sport-hunting (like it or not) is an important source of revenue for community-based conservation programs. Such programs have been important for polar bear conservation in Canada, and will become ever more important if the loss of arctic sea ice habitat is a big a threat to polar bear survival as many fear.

We also agreed that some conservative complaints are overstated. There is little risk that the federal government, or even a wayward federal judge, will hold that some power plant or other large greenhouse gas emitter is guilty of "taking" polar bears in violation of the ESA. As broad as the ESA's take prohibition may be, it has never been interpreted to reach such attenuated private harm.

The interesting question is what the polar bear listing will mean for projects that require a federal permit. Under Section 7 of the ESA, the federal government must "insure" that any actions authorized, funded, or permitted by any federal agency do not jeopardize an endangered or threatened species or destroy critical habitat for such a species. In my opinion, this means that the federal government will have a very difficult time approving new oil and gas leases in the arctic, and ESA consultation could well be required for federal projects and permits that could produce increased GHG emissions. Such actions will be allowed, in all likelihood, but simply requiring consultation can increase the time and expense of such activities.

Arroyo explained the administration's position that consultation should not be required for permitted activities that will increase GHG emissions, and outlined how the Interior Department has sought to "harmonize" polar bear protection with existing regulations under the MMPA. But he agreed that there is likely to be a substantial amount of litigation challenging administration policy, and that such litigation could have a substantial effect. If nothing else, it will devote FWS staff and resources away from other activities (e.g. actual conservation efforts).

The polar bear listing, and consequent regulatory restrictions, will be the subject of court battles for many years. CBD is already challenging the Interior Department's efforts to limit the listing's fallout and failure to designate critical habitat. Alaska Governor Sarah Palin also announced her intent to challenge the validity of the listing. Whatever the outcome of this litigation, one thing is certain: The listing will do very little to conserve polar bear populations. Even if the listing spurs greater action on climate change, it will be too little, too late to address the projected loss of sea ice of the next few decades and (as I note above) it could complicate other conservation efforts. The polar bear may be an "animal to save the world," but the Endangered Species Act will do little save the bear.

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PLF Challenges Polar Bear Listing:

The Pacific Legal Foundation has filed a notice of intent to sue the Fish & Wildlife Service challenging the listing of the polar bear as a "threatened species" under the ESA on behalf of the California Cattleman's Association, California Forestry Association, and the Congress on Racial Equality. There's more on the planned suit here.

While I like much of PLF's work, I think they're on the wrong side of this one. However pointless or mischievous the polar bear listing may be -- and however speculative some of the scientific data upon which the listing is based may be -- I believe the "best available" science easily supports the FWS decision. (See this article and my posts below.) Further, given the deference a reviewing court should show to the FWS' decision and scientific determination, their lawsuit should not fare particularly well. This may be bad policy, but it's the law.

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