Beveridge & Diamond
 

DOI Lists Polar Bear as Threatened under ESA

Beveridge & Diamond, P.C., May 15, 2008

On May 14, 2008, after a 15-month long investigation, Secretary of Interior Dirk Kempthorne listed the polar bear as a threatened species under the Endangered Species Act (“ESA”).  Citing declines in sea ice since 1979 attributed to global climate change, which “threatens and will continue to threaten” bear habitat, the Department of Interior (“DOI”) determined that the polar bear is at risk of becoming endangered in the foreseeable future. 

In declaring the polar bear threatened, thereby affording it the protections accompanying that classification, Secretary Kempthorne clarified that DOI will take steps to limit unintended impacts to society and the U.S. economy arising from attempts to misuse the ESA as a back door regulation to control greenhouse gas emissions from stationary and mobile sources.  To this end, DOI also proposed a rule under § 4(d) of the ESA declaring that any activities currently authorized under the stricter standards of the Marine Mammal Protection Act are also permissible under the ESA for purposes of the polar bear.  Moreover, administrative guidance will instruct agency personnel that the scientific data supporting the classification of polar bears as threatened cannot be used to establish a causal connection between harm to the species and emissions from a particular source.  Finally, DOI will propose regulatory amendments to prevent the listing from being co-opted to effect climate policy changes outside of the normal system of political accountability. 

Notwithstanding these stated limits on the polar bear listing, environmental groups already are planning to use the decision as a springboard to pressure the Bush Administration to address global climate change by further reducing domestic greenhouse gas emissions to protect the bear’s sea ice habitat.  With DOI having preemptively staked out its position on this issue, litigation is likely to follow.  The listing also may spark litigation involving new strategies for using the ESA as a sword to challenge projects with a federal nexus under the National Environmental Policy Act (“NEPA”), potentially impacting a wide range of private activities.  

For additional information about the listing or anticipated litigation or to discuss commenting on the forthcoming regulatory amendments, please contact Fred Wagner at fwagner@bdlaw.com, Parker Moore at pmoore@bdlaw.com, or Tim Sullivan at tsullivan@bdlaw.com.

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