Department of the Interior Lists the Polar Bear
On May 14, 2008, Secretary of the Interior Dirk Kempthorne announced the decision by the U.S. Fish and Wildlife Service (FWS) to list the polar bear as a "threatened" species under the Endangered Species Act (ESA). The purpose of this update is to provide a brief summary of the decision and some of its potential impacts on certain industries that may affect polar bears and their habitats.
On February 16, 2005, the Center for Biological Diversity petitioned the FWS to list the polar bear as a threatened species under the ESA. Greenpeace and the Natural Resources Defense Council later joined the petition, which acknowledged that "most populations are currently reasonably healthy and the global population is not presently endangered." It proposed listing the polar bear as threatened based largely on the future threats to the bear's habitat from global climate change – principally, the loss of arctic sea ice. What followed was a three-year legal battle creating a nearly unprecedented level of national attention and controversy over the potential integration of species management and climate controls. The listing battle culminated in an April 2008 order by the U.S. District Court for the Northern District of California requiring the FWS to make a final listing decision by May 15.
The Listing Decision
In a closely watched press conference, Secretary Kempthorne announced the FWS decision to list the polar bear as a threatened species under the ESA. A "threatened" species is defined as one that is likely to become an endangered species (one in danger of extinction) in the foreseeable future. The Department of the Interior (DOI) and the FWS determined that the polar bear is likely to become endangered within the next 45 years. In its final rule, the DOI attributed the polar bear's listing to significant threats of habitat loss, noting that "based on the best available scientific and commercial information, polar bear habitat – principally sea ice – is declining throughout the species' range, that this decline is expected to continue for the foreseeable future, and that this loss threatens the species throughout all of its range."
During the press conference announcing the listing, Secretary Kempthorne emphasized habitat loss as the basis for the listing decision and underscored the intended limitations of the listing. He described the basis for the listing as follows: "First, sea ice is vital to polar bear survival. Second, the polar bear's sea-ice habitat has dramatically melted in recent decades. Third, computer models suggest sea ice is likely to further recede in the future." In the rule, the FWS also emphasized that, in the context of listing a species due to future impacts on its habitat, the forseeability of risk for population decline can be understood by two interrelated factors: (1) the time frame in which scientists can reasonably predict the decline of sea-ice habitat; and (2) the time frame in which scientists can reasonably assess the continued viability of the species as a whole. On these points, the FWS provides the following commentary:
[W]e considered the timeframe over which the best available scientific data allow us to reliably assess the effect of threats on the polar bear, and determined that there is substantial scientific reliability associated with climate model projections of sea ice change over the next 40-50 years. Confidence limits are much closer (i.e., more certain) for projections of the next 40-50 years and all projections agree that sea ice will continue to decrease. In comparison, periods beyond 50 years exhibit wider confidence limits, although all trends continue to express warming and loss of sea ice (IPCC 2007, p. 749; Overland and Wang 2007a, pp. 1-7; Stroeve et al. 2007, pp. 1-5). This timespan compares well with the 3-generation (45-year) timeframe over which we can reliably evaluate the effects of environmental change on polar bear life history and population parameters. Therefore, we believe that a 45-year foreseeable future is a reasonable and objective timeframe for analysis of whether polar bears are likely to become endangered. The Secretary limited the listing decision, however, stressing that "loss of sea ice, not oil and gas development or subsistence activities, are the reason the polar bear is threatened," and that the listing and associated rules and guidance "define the scope of impact my decision will have, in order to protect the polar bear while preventing unintended harm to the society and economy of the United States." Secretary Kempthorne also emphasized President Bush's statement last month that "The Clean Air Act, the Endangered Species Act and the National Environmental Policy Act were never meant to regulate global climate change." Agreeing with this statement, Kempthorne noted that "[l]isting the polar bear as threatened can reduce avoidable losses of polar bears. But it should not open the door to use the ESA to regulate greenhouse gas emissions from automobiles, power plants, and other sources. That would be a wholly inappropriate use of the Endangered Species Act. The ESA is not the right tool to set U.S. climate policy," and that "the best scientific data available do not demonstrate significant impacts on individual polar bears from specific power plants, resource projects, government permits, or other indirect effects of activities in the lower 48 states that are potentially reviewable under the [Section 7] 'consultation' requirements of the ESA."
Concurrent with its listing decision, the DOI has issued an interim final ESA Section 4(d) rule. Section 4(d) of the ESA authorizes the FWS to customize regulations to conserve threatened species, such as the polar bear. Secretary Kempthorne clarified the 4(d) rule by stating that "if an activity is permissible under the stricter standards imposed by the Marine Mammal Protection Act, it is also permissible under the Endangered Species Act with respect to the polar bear." The FWS noted in its announcement of the special rule that the polar bear is a marine mammal and is therefore protected under the Marine Mammal Protection Act (MMPA), as well as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). Specifically, the FWS interim special rule states:
Under this rule, if an activity is authorized or exempted under the MMPA or CITES, we would not require any additional authorization under our regulations to conduct the activity. However, if the activity is not authorized or exempted under the MMPA or CITES and the activity would result in an act that would otherwise be prohibited under 50 CFR 17.31 [The FWS regulations deemed "necessary and advisable" to provide for the conservation of threatened species], the prohibitions of section 17.31 apply and we would require authorization under 50 CFR 17.32 of our regulations [provisions for issuing a permit for any activity otherwise prohibited with regard to threatened species]. In addition, otherwise lawful activities within the United States (except for Alaska) that cause incidental take of polar bears are exempt from the provisions of section 17.31. In addition, Secretary Kempthorne declined to designate any critical habitat under Section 7 of the ESA in the decision. The primary regulatory effect of critical habitat designation is that, under Section 7(a)(2) of the ESA, federal agencies must ensure that "any action authorized, funded, or carried out" by a federal agency "is not likely to jeopardize the continued existence of any endangered…or threatened species or result in the destruction or adverse modification of habitat" that has been designated as critical. In its decision, the DOI found that the critical habitat for the polar bear is "not determinable."
Other agency guidance was also released along with the DOI listing decision. Notably, Dale Hall, director of the FWS, addressed compliance with Section 7 of the ESA concerning emissions of greenhouse gases, how those emissions contribute to global climate change, and the effects that they may cause to listed species and designated critical habitats. Section 7 of the ESA requires federal agencies to consult with the FWS before taking any actions that may affect a listed species. Director Hall said that greenhouse gas emissions alone are never enough to trigger a Section 7 consultation for the polar bear. Rather, the only projects requiring Section 7 consultations are those that have direct or indirect effects on bears based on a project's presence within or in proximity to their habitat. The DOI drew a bright line for consultations under the ESA, requiring Section 7 consultations for polar bears only for projects in Alaska that are in or near the bear's habitat. Director Hall declined to extend the Section 7 consultation requirement to expand to all proposed activities that may emit greenhouse gases, noting instead that "[t]he determination of whether consultation is triggered requires an examination of whether the direct and indirect effects of a particular action reach the regulatory threshold of 'may effect'" and that additionally, current "best scientific data available today does not allow us to draw a causal connection between [greenhouse gas] emissions from a given facility and effects posed to listed species or their habitats, nor are there sufficient data to establish that such impacts are reasonably certain to occur." Without that causal connection, Hall notes, Section 7 consultations would not be required to address the impacts of a facility's greenhouse gas emissions.
The Next Steps
Parties with an interest in polar bear conservation requirements or the relationship between the ESA and greenhouse gas emissions should submit comments on the interim 4(d) rule. These comments are due on July 14, 2008, 60 days from the Federal Register's publication date.
Additionally, it is anticipated that the rule will be challenged both by parties arguing that the listing is unfounded and by those who argue that the listing and associated rules and guidance do not go far enough to provide actual protections to the polar bear.
The Pacific Legal Foundation has announced its intention to sue the DOI and the FWS to overturn the listing, noting its concern that the ESA will be increasingly used to regulate greenhouse gas emissions.
Various environmental organizations, including some, such as the Center for Biological Diversity, that were signatories to the original petition to list the polar bear, have publicly announced their intentions to immediately sue the DOI and the FWS for what they perceive to be significant loopholes and shortcomings of the listing and the accompanying 4(d) rule. There will likely be two main avenues by which these groups will challenge the listing:
1) a challenge to the 4(d) rule's assumption that authorization under the MMPA provides authorization under the ESA, and Impacts on Industry
2) a challenge to Director Hall's memo, which categorically rules out the potential for Section 7 consultation for projects based on their greenhouse gas emissions alone.
The listing of the polar bear now triggers the protections of the ESA, including the Section 9 prohibitions against take and the obligation of federal agencies to avoid jeopardy under Section 7. With the listing, however, the FWS has taken the unusual step to limit some, but not all, of the listing's impacts on the private sector, including the energy industry. Under the special ESA 4(d) rule, activities that are permitted under the MMPA, will be allowed to continue even if they will result in the incidental take of a polar bear. In practical terms, this means that if a party has an "Incidental Harassment Authorization" (IHA) under the MMPA that authorizes the incidental take of a polar bear, the IHA will similarly authorize the incidental take (such as through harm or harassment) of the polar bear under the ESA. Accordingly, parties without an MMPA permit conducting activities that could incidentally take a polar bear must obtain FWS authorization (under the MMPA or the ESA) or face the "take" prohibitions of the ESA.
With the listing, federal agencies and nonfederal entities operating under or applying for federal permits, will also need to satisfy the consultation and jeopardy avoidance obligations under Section 7. But by removing greenhouse gases from the scope of Section 7 consultations, the FWS has made it easier to minimize the impacts of such emissions to the polar bear and any future designated critical habitat. However, oil and gas projects in Alaska will remain subject to Section 7 consultation requirements if they are proposed for areas in, or near enough to impact, polar bear habitats. Director Hall notes:
It is clear that any direct effects of oil and gas development operations, such as drilling activities, vehicular traffic to and from drill sites, and other on-site operational support activities that pose adverse effects to listed species and their critical habitat would need to be evaluated through the Section 7 consultation process. It is also clear that any indirect effects from oil and gas development activities, such as impacts from the spread of contaminants…that are caused by the oil and gas development activities under consultation and that are reasonably certain to occur, … would also need to be evaluated through the Section 7 consultation process.However, the future effects of any emissions that may result from the consumption of petroleum products refined from crude oil pumped from a particular drilling site would not constitute indirect effects and therefore would not be considered during Section 7 consultations.
Secretary Kempthorne has indicated that the 4(d) rule will protect projects that have already received authorization under the MMPA from any new consultation requirements or regulatory restrictions. Because those projects were previously required to obtain authorization under the MMPA, the 4(d) rule aims to protect them from any further requirements under the ESA
Whether the 4(d) rule, and its upfront limitations to Sections 9 and 7, will survive judicial scrutiny remains to be seen. In the meantime, the polar bear stands at the forefront of the controversy surrounding the combination of wildlife management and protection with climate change concerns. Numerous other species, such as California's ashy storm-petrel, are now advancing through the listing process because of perceived threats to its habitat from climate change. How the listings and the subsequent protection of these species proceed will largely depend on the administrative and judicial precedents set by the polar bear listing.