Last week, the Fish & Wildlife Service listed the polar bear as a “threatened species” under the Endangered Species Act (ESA), the first species to be listed due to global warming. Although the ESA was not designed to address concerns like global warming, and listing the polar bear will do little if anything to protect polar bears in their native habitat, the federal government had little choice in the matter. Now that the bear is listed, the federal government may also have little choice but to take further measures to restrict greenhouse-gas emissions under the guise of protecting Ursus martimus.
The polar-bear listing was initiated by a petition from the Center for Biological Diversity (CBD), an environmentalist group that aggressively seeks greater regulation for species conservation in federal courts. When the federal government failed to act, CBD and other groups filed suit, prompting a court order mandating a decision on whether to list the bear. CBD hopes to use the listing to limit energy development in Alaska and force restrictions on greenhouse-gas emissions from federally permitted facilities. The group tried a similar gambit before with the listing of some coral species, but this time they may have hit upon a winner.
Under the ESA, the federal government is required to list a species as “threatened” if the “best available” scientific and commercial information indicates that the species is “likely” to become endangered in the foreseeable future. This standard does not give the government much discretion about whether to list a species. If the available scientific data suggest a species is, or is likely to be, in trouble, a listing must follow, even if the science is uncertain.
In the case of the polar bear, government scientists believe that the gradual decline of arctic sea ice due to climatic warming will threaten polar-bear survival. The bears depend upon arctic ice for their habitat, and this ice is declining due to global warming. This is the “best available” scientific research, even if it is open to some debate. Some polar populations appear to have increased substantially in recent decades, and many others are stable. Furthermore, polar bears appear to have survived earlier periods when ice levels declined.
However well polar bears are doing at the moment, what matters under the ESA is how they are likely to do in the future. According to the FWS, there is has been a “well documented” decline in arctic sea ice since the 1970s, and the rate of decline may be increasing. Computer models (admittedly not the most reliable source) project this trend is likely to continue, with warming at higher latitudes. Whether or not this is caused by human contributions to the greenhouse effect, this loss of essential habitat is likely to reduce polar-bear populations. Polar bears have survived prior warming periods, but the rate of ice may be greater than in the past. Combined with other stresses on polar populations, the loss of sea ice appears to be a real threat to polar bears, and that is all that is necessary for a listing decision. Policy considerations, such as the potential costs of protecting polar bears or the likelihood federal regulations can do much to help the species, are not part of the equation under the ESA.
In agreeing to list the polar bear, Secretary Kempthorne sought to prevent the decision from having much practical legal effect. Specifically, the FWS refused to designate a polar bear “critical habitat” — a step that is supposed to accompany the listing decision — and announced a regulatory interpretation that the listing does not require FWS oversight of federal actions that could increase greenhouse gas emissions. The same environmentalist groups that sued to force the polar bear’s listing are sure to challenge these steps as well, and the legal outlook is pretty grim.