Kempthorne is certainly correct that the ESA is a poor vehicle for greenhouse-gas regulation. The act does a poor enough job conserving species threatened by direct human habitat modification. It has little hope of saving polar bears through greenhouse-gas controls. Indeed, even the CBD acknowledges that declaring the polar bear to be a threatened species will have little, if any, impact on polar habitat or its ultimate survival. Nonetheless the listing could still impose substantial costs, particularly if courts reject the administration’s narrow view of the ESA’s reach. As with the listing decision, the ESA does not offer federal regulators much discretion about how to conserve threatened species.
The ESA bars the government from authorizing, funding, or undertaking actions that are “likely to jeopardize the continued existence” of a listed species or contribute to the loss of its critical habitat. According to the CBD and its environmentalist allies, this means that the federal government must address greenhouse-gas emissions from federally permitted facilities, because such gases contribute to the climatic changes that ultimately threaten polar bears. The result of such an interpretation of the ESA could be quite severe limitations on greenhouse-gas emissions from power plants, industrial facilities, and federally permitted development projects.
The administration argues, somewhat plausibly, that there is no cause to impose restrictions on greenhouse gases through the ESA because scientific research “has not established a causal connection between specific sources and locations of emissions to specific impacts posed to polar bears or their habitat.” In other words, there is no direct, demonstrated link between the greenhouse-gas emissions from any given federally permitted project and the melting of arctic sea ice. Any such connection is attenuated and uncertain, the administration argues, so the relevant ESA strictures should not apply.
The problem for the administration is that federal courts have been somewhat reluctant to interpret the ESA so narrowly. For years the federal government has sought to limit the effect of a “threatened” listing by only considering direct impacts on critical habitat. Under this interpretation of the act, it would be relatively easy to ignore the potential effect of greenhouse gas emissions on arctic ice. This limiting interpretation has not fared too well in federal courts. So adopting this approach to greenhouse-gas emissions may only postpone the inevitable effect of the listing.
If the Interior Department’s effort to contain the listing’s impact is rejected in court — or revised by the next presidential administration — it could create a new layer of greenhouse gas regulation on private projects that require federal permits. This would “force anyone in America whose business requires the emission of greenhouse gases to go through an additional layer of consultation with the Fish and Wildlife Service, creating delays and expenses,” the Alaska Oil and Gas Association’s Marilyn Crockett told the Associated Press. Yet even the imposition of draconian emission limits on federally funded or authorized projects would do nothing at all to save polar bear habitat in the arctic.
Declaring the polar bear a “threatened” species imperiled by global warming certainly hands a public relations victory to environmentalist groups. Now they have cute and cuddly mascot for their climate-change campaigns. Given the structure of the ESA, the listing may provide them with a powerful legal weapon as well. Because the ESA can be used to force legal action even when unwarranted or unwise, it can provide pro-regulatory forces with tremendous leverage over private development. The one thing the listing will not do, however, is help save polar bears or the arctic habitat in which they reside.
– NRO Contributing Editor Jonathan H. Adler is professor of law and director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law. He likes to take his daughter Ellen to see the polar bears at the Cleveland Zoo.