Polar Bears, Endangered Species Act, and Climate Change

Hi everyone,

The readings we discussed this week were on polar bears and the recent listing of the polar bear as ‘threatened” under the Endangered Species Act (ESA) . The polar bear was listed because it is dependent upon sea ice, which is melting due to global warming. However, US Secretary of the Interior, Dirk Kempthorne, is taking “administrative and regulatory action” to try to prevent the ESA from being used to make global warming policies.

We spent a long time trying to puzzle out some of the implications. Questions that came up and some answers:

Q: What exactly does the Endangered Species Act do?

A: Biologists with either US Fish & Wildlife Service or NOAA Fisheries propose species to be listed, and once through Administration hoops, there is a public comment period listed in the Federal Register to list the species as “threatened” or “endangered.” In short, it is illegal to “take” (kill, harm, wound, etc.) endangered species. US F&WS and NOAA are required to create a Recovery Plan for each species on the list and define “critical habitat” (habitat essential to conservation of the species). Federal agencies are prohibited from authorizing, funding or carrying out actions that destroy or degrade critical habitats. (Exceptions apply…)

Most of the effect is through the permitting process for projects and development. If a road, house, dam, etc., will significantly affect an endangered species or its habitat, permit can be withheld. Click here for a more complete explanation of the Act.

Q: Kempthorne is proposing a 4(d) rule that says if an act is “permissible under the stricter standards of the Marine Mammal Protection Act”, it will be allowed under the ESA for the polar bear. So…
What is a 4(d) rule?
A: Section 4(d) of the ESA allows for special regulations for threatened (not endangered) species. This is intended to make the ESA more flexible, and these regulations may either increase or decrease the ESA’s normal protections.

What is “stricter”?
A: We thought that by “stricter”, Kempthorne meant that the Marine Mammal Protection Act was more protective than the ESA…but after doing some research, it seems the opposite. We came to believe he was using intentionally misleading speech, and that he really meant the marine Mammal Protection Act was more limited, narrower. We are not lawyers, so we can’t be sure...we think that was his intention.

Are polar bears considered marine mammals?
A. Yes, polar bears are regulated under the Marine Mammal Protection Act, but they along with walruses, sea otters and manatees, are under the authority of Dept. of Interior (U. S. Fish and Wildlife Service), whereas most marine animals come under authority of Dept. of Commerce (NOAA) . So Polar Bears are now protected under both ESA and MMPA.

So the question is: is it appropriate to use the ESA to create climate change policy? While we all support action on climate change, there was some sympathy for the idea that the ESA is really not the best tool, as it is more suited to permit-by-permit actions. It might not be fair to single out specific developments, nor reasonable to claim that a particular development will cause polar bears to die. However, many people felt that we should use any legal hammer we have available to us, since our government seems unwilling to create a more comprehensive policy. In California, Jerry Brown is using the California Environmental Quality Act to sue local municipalities over land use plans that do nothing to reduce driving and the car-dependent lifestyle. We handed out an article about cultural conflicts over the Endangered Species Act as well.

We talked about the fact that the polar bear is an ideal poster child for stopping global warming…how we are biologically programmed to respond to furry creatures, and that almost every child has seen a polar bear at the zoo, and they seem so cute and cuddly in photos. The irony is that they are one of the most fearsome predators on land, and very intelligent and dangerous. We also touched on why there has been so much discussion of the threat to polar bears, and so little of actual countries that could disappear due to rising sea levels—such as many island nations in the South Pacific. We talked about the cost-benefit analysis of various types of action on climate change…and Stephanie forwarded an article that gives more info on this.

Finally, we talked about signs of hope…the strong sense that momentum is growing to fight global warming, both personally and politically…that vehicle miles traveled in the US have actually been dropping since November (due to high gas prices, but still)…and that Rhode Island farmers can barely keep up with the increased demand for local food. See the Take Action! section on the sidebar if you want to step up the fight against global warming!

OK, I've gone on long enough...let us know what you think by adding a comment! Just click where it says "comments" below this message. See you next time, and happy reading!

July Lewis & Eugenia Marks