Last week, after months of delay, the U.S. Department of the Interior listed the polar bear (PDF) as threatened under the Endangered Species Act. While identifying global warming as the principal threat to the bear, the government asserted that the ESA does not require other federal agencies to consult with the Fish and Wildlife Service over actions that may increase greenhouse-gas emissions. In other words, the feds are willing to acknowledge that polar bears are going extinct, but they’ll make sure nothing is done about it.
Yes, this is yet another example of the administration’s longstanding antipathy to regulating greenhouse-gas emissions. But there is more to it. Even an administration that cared deeply about global warming might resist regulating emissions through the Endangered Species Act. The truth is that the ESA is ill-suited to addressing the greenhouse problem—it’s much too narrow and reactive. But these very shortcomings might yield something better in the future. The morass of enforcement battles that can be expected to follow the polar bear listing would force us to confront the need for national greenhouse-gas legislation sooner rather than later. Unfortunately, the administration is making every attempt to head off those battles and obscure that message.
Last week’s decision makes it impossible for the government even to attempt to reduce carbon-dioxide emissions under the ESA. The law, as written, imposes two regulatory requirements. First, it forbids “take” of a listed species—defined to include any form of harm by anyone within, or subject to, the jurisdiction of the United States. This prohibition was intended to address all the direct and indirect ways that people hurt other creatures, from hunting to logging, damming rivers, and building shopping malls. By this logic, it should also cover harmful acts like increasing the world’s temperature to the point at which sea ice melts. But the ESA isn’t likely to offer the polar bear much protection against global warming because the courts have already drawn its sting. Proving “take,” the Supreme Court has said, requires showing that an action will harm an identifiable member of the listed species. That’s pretty straightforward if an irrigation pump dumps young salmon on a tomato field, or if timber harvesting destroys a spotted owl nest. But it’s hard to see how you would prove that emissions from any particular power plant are melting the ice used by a particular bear. The government’s decision to list the bear makes this difficult task nearly impossible by asserting outright that such specific connections cannot be made under any circumstances. The only lawsuits with even a slim prospect of success would have to target an entire industry or the largest players in the industry—along the lines of the public nuisance suits that states have brought against major electric utilities and auto manufacturers, claiming that their emissions unreasonably foul the air.
Second, the ESA requires that all federal agencies “consult” with the Fish and Wildlife Service to make sure that their actions do not make the extinction of listed species more likely. This should include greenhouse-gas emissions caused, approved, or funded by a federal agency. The government, however, is now claiming that consultation is required only for actions that produce “take”—i.e., actions that harm an identifiable member of the species. If that’s true, the consultation requirement of the ESA would be just as ineffective at protecting polar bears as the prohibition of “take.”
I believe the administration is misreading the law, but sorting that out is a matter of arcane legal interpretation. More to the point, the urge to avoid consultation is wholly understandable. It’s not at all clear what the Fish and Wildlife Service would do to consult on the effects of, say, a new, federally financed, coal-fired power plant. Ordinarily, it would ask whether this power plant, added to the baseline of pre-existing emissions, would jeopardize the continued existence of the polar bear. But all greenhouse emissions make global warming incrementally worse, which means that FWS might be obliged to ban all new or continuing emissions subject to federal control. That would certainly stop federal investment in new power plants, and it might even mean that all federal highway funding would be illegal. And even if that unlikely scenario came to pass, the polar bear might still be doomed by emissions from the private sector or from sources overseas.
No wonder the administration wants to avoid consultation. (The courts may well be just as reluctant to enforce the law.) But sometimes it’s better to have the wrong legal tools than to have none at all. Laws that don’t quite fit can force us to pay attention to important problems and develop better tools for dealing with them.
The dispute over whether the Clean Air Act requires the government to regulate greenhouse-gas emissions from cars is an example. A deeply divided appeals court accepted (PDF) the government’s argument that the Clean Air Act is not a useful tool for addressing global warming. Last year the Supreme Court reversed the decision (PDF), ruling that the plain language of the Clean Air Act covered carbon dioxide emissions. While it has not yet led to federal regulation of greenhouse gas-emissions, the Supreme Court’s fidelity to the text of the Clean Air Act has increased the pressure on Congress to enact federal legislation better-tailored to greenhouse-gas emissions. Without a new law, we’ll either have to apply a regulatory framework designed for local pollutants to a very different problem or be forced to exempt greenhouse-gas emissions from the Clean Air Act altogether. Both alternatives are unattractive.
The listing of the polar bear should present the same quandary. It doesn’t tell us how to solve the global-warming problem. But it will force us to choose between giving up a goal we believe in—not causing extinctions—or facing incurable regulatory headaches. Those distasteful alternatives make comprehensive greenhouse legislation look attractive by comparison. Sometimes we need to face that kind of choice before we’re willing to take our medicine.
So of course the ESA won’t save the polar bear. And of course the administration is trying to dodge its apparently pointless and paralyzing duty to consult on emissions with a federal nexus. The whole thing seems ridiculous—the bears will die out anyway, so why waste our efforts on futile and confusing regulatory efforts?
Here’s why: because it’s important to make ourselves acknowledge that we’re on a path that is inconsistent with the goals of the Endangered Species Act. The ESA should make us uncomfortable until we create the tools it lacks to address emissions broadly. Instead of restricting the scope of the ESA, we should work on replacing it with something better.