Administration refusal to protect polar bear from greenhouse emissions “won’t hold up in court”

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The May 14 decision to list the polar bear as “threatened” under the Endangered Species Act “is a watershed event,” said Kassie Siegel of the Center for Biological Diversity. But “The administration’s attempts to reduce protection to the polar bear from greenhouse gas emissions are illegal and won’t hold up in court.”

May 14 news release from the Center for Biological Diversity, Natural Resources Defense Council, and Greenpeace, the groups that initiated and continue to fight the legal battle to link science to policymaking in the case of global warming’s threat to the existence of the polar bear [full text below].

Interior Department May 14 announcement of decision to list polar bear as threatened.
In making the announcement, Interior Secretary Kempthorne said, “I am also announcing that this listing decision will be accompanied by administrative guidance and a rule that defines the scope of impact my decision will have…to make certain the [Endangered Species Act] isn’t abused to make global warming policies.” The text of the announcement suggests that the Interior Department does not intend to use the interagency consultation requirements of Section 107 of the Endangered Species Act to address the problem of greenhouse gas emissions resulting from decisions or activities of federal agencies. ESA Section 7 specifies: “Each federal agency shall . . . ensure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species…” 

See the April 2 Senate testimony of Kassie Siegel, Director of the Climate, Air, and Energy Program at the Center for Biological Diversity, which initiated the action that has brought the case to this point, for an excellent discussion of the requirements of the Endangered Species Act and their implications for the case of the polar bear.

See our April 21 post: “Bush climate speech aligns with disinformation campaign on stonewalling courts and environmental law.” Buried in President Bush’s mostly empty speech on climate change April 16 was a signal that the White House is likely to continue to stonewall on compliance with the Supreme Court’s ruling on greenhouse gas regulation and clear requirements of the nation’s environmental laws. With this above-the-law posture he is adopting a position urged on him by the global warming disinformation campaign and its political allies.

Full text of environmental groups’ news release [emphasis added]:

Environmental Groups Win Protection for Polar Bear
Faced with Scientific Evidence on Global Warming, Court Order, and Public Pressure,
Government Grants Polar Bear Endangered Species Act Listing Due to Global Warming

WASHINGTON, DC – May 14 – Following a three-year legal battle to protect the polar bear from extinction due to global warming, three environmental groups won protection for the species with the announcement today that the U.S. Fish and Wildlife Service is listing the polar bear as a federally “threatened” species.

The decision was issued in response to a 2005 scientific petition from the Center for Biological Diversity, Greenpeace and the Natural Resources Defense Council (NRDC), and was required by a Court order in a lawsuit brought by the groups to end the administration’s delay in issuing a final Endangered Species Act listing decision.

While the polar bear listing is one of the administration’s clearest acknowledgments to date of the urgent threat posed by global warming, the administration is simultaneously attempting to reduce the protections the bear will receive under the Endangered Species Act.  It claims in the listing decision that federal agencies need not consider the impact of global warming pollution on the polar bear, and has also proposed a separate regulation reducing the protections the polar bear would otherwise receive.

“This decision is a watershed event because it has forced the Bush administration to acknowledge global warming’s brutal impacts,” said Kassie Siegel, climate program director at the Center for Biological Diversity, and lead author of the 2005 petition. “It’s not too late to save the polar bear, and we’ll keep fighting to ensure that the polar bear gets the help it needs through the full protections of the Endangered Species Act. The administration’s attempts to reduce protection to the polar bear from greenhouse gas emissions are illegal and won’t hold up in court.”

Polar bears live only in the Arctic and are totally dependent on the sea ice for all of their essential needs. Global warming is an overwhelming threat to the polar bear, already suffering starvation, drowning, and population declines as the sea ice melts away.

“The polar bear is already on thin ice. Protecting the polar bear under the Endangered Species Act is a major step forward, but the Bush Administration has proposed using loopholes in the law to allow the greatest threat to the polar bear—global warming pollution—to continue unabated,” said Andrew Wetzler, Director of the Endangered Species Project at NRDC. “If the key threats to the polar bear are not addressed soon, zoos will be the only place our grandchildren will be able to see a polar bear.”

“The administration’s inclusion of this language exempts the impact of global warming on the polar bear and would gut any protections the ruling would have provided,” said Melanie Duchin, global warming campaigner for Greenpeace USA in Alaska. “Global warming threatens polar bears with extinction, so to exempt global warming pollution from the formula for protecting the species violates the spirit and intent of the ESA.”

Each step in the listing process has required legal action to enforce the Endangered Species Act’s deadlines for protecting species. The three groups first sued the Bush administration in December 2005, because the government had ignored their petition to protect the polar bear. As a result of that lawsuit, in February 2006, the U.S. Fish and Wildlife Service found that protection of polar bears “may be warranted,” and commenced a full status review of the species. A settlement agreement in the case committed the Service to make the second of three required findings by December 27, 2007, at which time the administration announced the proposal to list the species as “threatened.” By law, the administration was required to make today’s final listing decision within one year of the proposal, or January 9, 2008. When the administration failed to comply with that deadline, the groups filed suit on March 10, 2008, to end the delay. On April 28, the District Court issued an order requiring the administration to issue a decision by May 15.

Scientists predicted and have now documented the grim impacts to polar bears as the Arctic warms rapidly. Shrinking sea ice drastically restricts polar bears’ ability to hunt their main prey, ice seals. In the spring of 2006, scientists located the bodies of several bears that had starved to death. Reduced food availability due to global warming has also caused polar bears to resort to cannibalism off the north coast of Alaska and Canada. In September, the U.S. Geological Survey predicted that, based on polar bear distribution and current global warming projections, two-thirds of the world’s polar bear population would likely be extinct by 2050, including all polar bears within the United States.

The Arctic melt is also outpacing predictions. September 2007 shattered all previous records for sea ice loss when the Arctic ice cap shrank to a record one million square miles – an equivalent of six times the size of California – below the average summer sea ice extent of the past several decades, reaching levels not predicted to occur until mid-century. Scientists already predict this year’s sea ice minimum could shatter the record previously set in 2007. Several leading scientists now predict the Arctic Ocean could be ice-free in the summer by 2012.

Listing the polar bear guarantees federal agencies will be obligated to ensure that any action they authorize, fund, or carry out will not jeopardize the polar bears’ continued existence or adversely modify their critical habitat, and the U.S. Fish and Wildlife Service will be required to prepare a recovery plan for the polar bear, specifying measures necessary for its protection.

The Center for Biological Diversity works through science, law, and creative media to secure a future for all species, great or small, hovering on the brink of extinction. 

Greenpeace is an independent campaigning organization with 2.7 million members worldwide that uses peaceful protest and creative communication to expose global environmental problems and promote solutions for the future. 

The Natural Resources Defense Council is a national, nonprofit organization of scientists, lawyers and environmental specialists dedicated to protecting public health and the environment. Founded in 1970, NRDC has 1.2 million members and online activists, served from offices in New York, Washington, Chicago, Los Angeles, San Francisco and Beijing.

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