At first glance, it isn’t readily apparent what polar bears have to do with greenhouse gas emissions.
But the world’s largest land carnivore and its Arctic habitat have become ground zero in the ongoing battle on climate change. The supremely photogenic Ursus Maritimus is now the poster child for environmental activists seeking to curb greenhouse gas emissions in the United States.
Population Is Rising
The polar bear’s rise to prominence in this unlikely drama came after a California court ordered the U.S. Department of Interior to make a final decision on whether to list the polar bear as a “threatened” species under the Endangered Species Act.
Although the Alaska Department of Fish and Game reports the global polar bear population is now between 20,000 and 25,000, up from 8,000 to 10,000 in the 1960s, there is evidence its habitat—Arctic sea ice—is diminishing. As such, DOI concluded, “because polar bears are vulnerable to the loss of habitat, they are … likely to become endangered in the foreseeable future.”
The polar bear was officially listed as threatened on May 15, 2008. The listing decision was based in part on the conclusion greenhouse gas emissions have caused and will continue to cause a decline in the polar bear’s sea ice habitat. In this way, environmental activists successfully perverted the listing provisions of the ESA to make it a vehicle to control greenhouse gas emissions—something it is not designed or intended to do—by enjoining any activities that result in such emissions.
Under this logic, any emitter of greenhouse gases in any state is contributing to the destruction of the polar bear’s habitat. In other words, all U.S. emissions of greenhouse gases from any source anywhere in the United States—cars, power plants, homes, factories—are now considered harmful to the bears’ habitat and must be limited by government regulation.
Even Slower Permit Process
Listing the polar bear as a threatened species under the ESA will result in drastic and widespread delays for almost every federal government activity in the United States. Section 7 of the ESA requires each federal agency to consult with the Secretary of the Interior to ensure any federal action carried out by that agency does not jeopardize the continued existence of a threatened species or result in the destruction or adverse modification of the habitat of such species.
By listing the polar bear as a threatened species, any federal action—such as a permit issued by a federal agency under the Clean Air Act, Clean Water Act, National Environmental Policy Act, or other statute—now requires a Section 7 consultation between the permitting agency and DOI, significantly slowing an already time-consuming and onerous process.
If left in place, the listing could effectively halt government activities for months or even years while the agencies determine whether issuance of the permit will jeopardize the Arctic ice.
The decision to list the polar bear as threatened because of the tenuous connection between rising greenhouse gas emissions and melting Arctic ice is even more troubling when you consider such a finding will dramatically increase litigation nationwide.
Under Section 11(g) of the ESA, any person may bring a private right of action (a citizen suit) against any other person, including the government of the United States, alleged to be in violation of the provisions of the ESA.
Imagine the litany of citizen suits against businesses that emit greenhouse gases—which includes just about every business, large or small—alleging their lawful operations threaten the habitat of the polar bear. Imagine a lawsuit against the entire federal government alleging its lawful operations threaten the habitat of the polar bear, and the U.S. government being enjoined from all operations until it finishes its consultations.
Proponents of the listing see the ESA as a backdoor mechanism for regulating greenhouse gas emissions. This is evidenced by the slew of ESA lawsuits, filed in the wake of the polar bear listing, identifying other species as “suffering” from the impacts of global warming.
Such species include the Colorado pikeminnow; razorback sucker; pacific walrus; ashy storm petrel; American pika; bearded, ringed, and spotted seals; and 10 penguin species. The true goal of those who pushed to list the polar bear as a threatened species is to put a stop to all greenhouse gas emissions, even if it means halting all construction in the United States.
Fortunately, at the time of the listing the Secretary of the Interior exercised his statutory authority under Section 4(d) to impose different prohibitions or restrictions on activities affecting a particular threatened wildlife species. The secretary alleviated the potentially catastrophic economic impact of the listing by exempting the polar bear from the onerous “taking” and “consultation” provisions of the ESA.
Just one day after the listing and publication of the 4(d) rule, the Center for Biological Diversity sued DOI in a Northern California court to vacate the rule on the grounds it violates the ESA, Administrative Procedure Act, and National Environmental Policy Act. If the lawsuit is successful, the current financial crisis will seem mild compared with the economic hardship that will almost certainly ensue.
William L. Kovacs ([email protected]) is vice president of the U.S. Chamber of Commerce Environment, Technology, and Regulatory Affairs Division.