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"The Bear Necessities of Fighting Climate Change"

Daily Journal
By: Paul S. Weiland

On May 14, Secretary of the Interior Dirk Kempthorne announced the federal government's decision to list the polar bear as a threatened species under the Endangered Species Act (ESA). The decision signals the beginning of what is likely to be a vociferous debate regarding the use of the ESA as a tool to combat global climate change.

Using the ESA to address climate change is analogous to using a hammer to put a screw in the wall. It is likely that the problems associated with use of this instrument will be substantial, perhaps even unacceptable. The better path forward is for policy-makers to refuse to stretch ESA even further than its pre-existing and over-ambitious purposes and work assiduously to pair instruments with problems.

The Department of the Interior's resistance to listing the polar bear may be attributable in part to partisan politics. But it is also likely that Kempthorne and his advisers recognized the mismatch between the ESA as an instrument and climate change as a problem, and that for this reason they only took action to list the polar bear at the insistence of a federal district court judge.

In February 2005, the Center for Biological Diversity (CBD) submitted a petition to the Fish and Wildlife Service - a component of the Department of the Interior - requesting listing of the polar bear as a threatened species under the ESA and the concurrent designation of critical habitat. Under the ESA, the Fish and Wildlife Service is required to respond to all petitions for listing within 90 days and when the it failed to do so, CBD and two other environmental groups sued.

In response, the Fish and Wildlife Service made an initial finding that listing may be warranted and entered into a settlement agreement committing the service to either determine listing is not appropriate or propose listing of the species by Dec. 27, 2006. Then, on Jan. 9, 2007, the Fish and Wildlife Service issued a proposed rule to list the polar bear as threatened. Under the ESA, the Fish and Wildlife Service was required to issue a final ruling listing the polar bear within one year of the proposed rule. When the service failed to do so, the plaintiffs in the prior lawsuit filed a second suit on March 10, 2008, to compel the service to act. On April 28, the court issued an order requiring the Fish and Wildlife Service to issue a decision by May 15, which prompted the decision by Kempthorne.

The Fish and Wildlife Service based its decision to list the polar bear as threatened on the loss of sea ice, which polar bears rely on as their primary habitat and which is expected to decrease substantially during the 21st century. At the same time, the service went to great pains to clarify its view that the ESA was never intended to regulate climate change, which is identified as the principal culprit behind the existing and projected reductions in sea ice in the Arctic.

In response, the conservative Pacific Legal Foundation has already announced its intent to challenge the listing decision. At the same time, the environmental groups involved in the earlier litigation have announced their intent to sue the service for failing to designate critical habitat for the polar bear. And it is clear that additional litigation will follow, including a challenge to the Fish and Wildlife Service's Section 4(d) rule that accompanied the listing decision, as well as challenges to proposed federal actions ranging from construction of new roads to permitting power plants on the grounds that they will result in greenhouse gas emissions that contribute to climate change, thereby affecting polar bears and their habitat.

CBD has made no bones about its position regarding the need for interagency consultation under Section 7 of the ESA. In a recent article, Brendan Cummings and Kassie Siegel of CBD said that "if an action contributes an appreciable amount of GHG emissions to the atmosphere, that action should undergo the consultation process." Cummings and Siegel argue that something is appreciable if it is "large or important enough to be noticed."

It is possible that the ESA may be stretched through judicial interpretation to address and even regulate activities that contribute to global climate change. But it is not preferable. As J.B. Ruhl has noted, "the ESA was not enacted with global climate change in mind." Ruhl has correctly observed that over-reliance on the ESA as the appropriate regulatory framework to control greenhouse gas emissions could ultimately lead to re-evaluation and weakening of the act. That said, it should not be surprising that advocacy groups are going to use the instruments at their disposal to advance their respective agendas.

To address climate change, as a society we are faced with the issue of instrument choice. This is an issue that policy-makers must regularly address in the context of environmental problems. In other words, it is necessary for policy-makers to consider the range of instruments or tools available to address policy problems and to select the correct instrument from the proverbial toolkit.

Undoubtedly, there are instruments available to address global climate change at the national level that are preferable to the ESA. Among these, two that are receiving significant attention at present are a cap-and-trade system to regulate greenhouse gases and a simpler tax on greenhouse gas emissions. Until national policy-makers adopt one or more instruments tailored to address the specific problem of climate change, it is unsurprising that advocacy groups will utilize varied instruments at their disposal - including the ESA - to address climate change. But use of the wrong instrument to address the problem of climate change is bad public policy, and we will all be better served in the future if policy-makers can find a way to match policy instruments with societal problems.

Paul S. Weiland is a partner in the Orange County office of Nossaman Guthner Knox & Elliott, where he heads the firm's land use practice group.
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