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.
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.