Just over a year ago, the U.S. Fish and Wildlife Service proposed to list the polar bear as threatened under the Endangered Species Act. Last week, the service missed the deadline to finalize or withdraw that proposal. Environmental groups have already filed a notice of intent to sue if Interior Secretary Dirk Kempthorne delays much longer.
But it’s not immediately obvious that listing the polar bear makes sense. In the short term, populations are at reasonably high levels and holding steady. In the longer term, designating polar bears for protection won’t stop climate change and therefore won’t save their Arctic sea ice habitat. Given these harsh facts, is this battle to list the polar bear right away worth the fight?
There isn’t much debate over the dangers posed to the polar bear. The Arctic sea ice has diminished noticeably in recent years, and climate models predict further losses to come.
It’s true that polar bears are doing better than most species when they reach the protected list. The population worldwide is estimated at 20,000 to 25,000 and appears to be stable under current conditions. (For comparison, a 1993 here [PDF] to read the relevant section of the law.) To determine whether those definitions are met, the service must look beyond current population numbers to how those numbers are likely to change.
That’s what happened with the snail darter, the famous little fish that temporarily halted construction of the Tellico Dam. When it was listed as endangered in 1975, the snail darter was thriving in the lower Little Tennessee River. That stretch of the Little Tennessee, though, was scheduled to be drowned under the Tellico Reservoir. (Congress exempted the dam from the ESA nevertheless. The fish later turned up in a few nearby streams and persists today as a threatened species.) The threat to polar bears is developing on a longer timeline than the threat to snail darters, but the reasoning is the same: Human actions now are predictably committing the bear to future peril.
A second objection to the proposed listing is that it will not save the bear. For all its vaunted strength, the ESA does not provide an effective mechanism for controlling greenhouse-gas emissions. First, the ESA has no purchase against emissions that originate outside the United States. Second, even within the United States, greenhouse-gas emissions come from a multitude of sources. The ESA was designed to deal with actions directly connected to an affected species, such as overharvest or habitat development. It is ill-equipped to deal with the individual decisions that are responsible for a large proportion of U.S. greenhouse-gas emissions.
The service would never try to regulate individual electricity use, and it is inconceivable that a citizen suit against someone who drives a Hummer would succeed. Large emitters like the major utilities are therefore the more likely targets for legal action. (They’re already defending themselves against a tort suit brought by a coalition of states claiming that their carbon emissions are harming people and the environment.) But the Supreme Court suggested in 1995 that establishing an ESA violation requires proof of harm to an individual animal. Proving that a utility’s emissions harmed a polar bear would be a daunting task for environmental plaintiffs. Even the largest emitters are not to blame for global warming in the unambiguous way that hunting or land development can harm species.
At best, the ESA can be used to compel major emitters to seek a permit allowing their emissions and to force consultation with the service over emissions caused or authorized by a federal agency. In that case, the service would have to identify an acceptable level of emissions and decide whether everything practicable had been done to reduce the impacts on listed species. What sorts of answers the service would come up with, and what good they would do the polar bear, is anyone’s guess.
None of this provides a sound legal argument against listing, however. The service is not required to prove that naming the polar bear as a threatened species will solve all its problems. Invoking the ESA may have beneficial effects even if it does not directly save sea ice. For example, the listing of the California gnatcatcher prompted the Golden State to adopt new conservation laws, and the prospect of listing the coho salmon led Oregon to devise a new salmon conservation plan. Listing of the charismatic polar bear might increase political support for new regulatory measures. The polar bear faces other threats that the ESA is better suited to address, such as the impacts of oil exploration and production activities. Listing will add a legal weapon for combating arctic oil development.
Of course, there are political risks to pushing the limits of the ESA—namely, the fear that if conservation measures outstrip their political support, Congress might repeal or cripple the ESA. That fear motivated the spirit of compromise that dominated ESA implementation under Bill Clinton. A few years ago, environmental groups sued over the operation of a federal irrigation project that was drying up large stretches of the Rio Grande. They prevailed in court, winning a judgment requiring the Bureau of Reclamation to consult with the Fish and Wildlife Service. But the irrigation project had plenty of friends, including the city of Albuquerque, which was looking to it for drinking water. Congress effectively reversed the court victory by ordering the bureau not to divert any water from people to fish. There was even talk of removing all water projects from the ambit of the ESA.
Such political risks seem low in this case, however. The polar bear surely has more political sway than a little-known minnow, big polluters are less sympathetic than farmers and municipal water users, and Congress is more sympathetic to environmental protection than it used to be.
The arguments against listing the polar bear don’t stand up either legally or as a matter of policy. The polar bear fits the law’s definition of a threatened species. Although the ESA cannot solve the problem of global warming, it might help push the nation toward a more effective solution. Listing is not likely to result in wholesale rebellion against the ESA, and it might help the bear in small ways, by forcing offshore oil interests in the arctic to take better account of their environmental impacts. Secretary Kempthorne should follow the law and add the polar bear to the protected list.