In this Emerging Issues Commentary, Jessica Ferrell of the Marten Law Group discusses the U.S. Department of Interiors (Interior) and U.S. Fish and Wildlife Services (USFWS) decision to list the polar bear as a threatened species under the Endangered Species Act (ESA) and the subsequent challenges to that decision. The State of Alaska and Safari Club International are one side of the debate alleging, respectively, that the decision is not supported by sufficient evidence and that the decision prohibits importation of trophy polar bears into the United States. On the other side of the debate are several environmental groups challenging the ESA Section 4(d) rule issued with the listing decision and claiming, among other things, that the listing does not provide enough protection for the bear. Along with examining these positions, Ms. Ferrell reviews the Interior and USFWS's bases for listing the polar bear and the Interiors Section 4(d) rule for the polar bear. She comments that many more lawsuits challenging the listing and activities in polar bear habitat are sure to be filed, illustrating that the decision was not a definitive win for any side of the debate. She ends by providing practice pointers concerning federal actions that will likely be subject to consultation as a result of the polar bear listing.
Ms. Ferrell writes: Polar bears are the largest living bear species, and live in Canada, Russia, Greenland, and the Chukchi and Beaufort seas west and north of Alaska. Between 20,000 and 25,000 polar bears are estimated to exist worldwide, in 19 “relatively discrete populations.” The species depends upon sea ice to hunt and feed, as habitat for breeding and denning, and for long distance movement. They also require sufficient snow accumulation for den construction and maintenance. The USFWS found that “[t]he best available scientific evidence unequivocally” establishes that atmospheric CO2 levels exceed pre-industrial levels,” and that, “[s]ince the start of the industrial era, the effect of increased GHG concentrations in the atmosphere has been widespread warming of the climate, with disproportionate warming in large areas of the Arctic … .” The Service explained that “a net result of this warming is a loss of sea ice, with notable reductions in Arctic sea ice."
Seals are polar bears’ primary food source. However, bears sometimes eat walrus, narwhal, beluga whales, and, when confined to land for long periods of time, human garbage, plants, and other terrestrial food. Polar bears’ primary food sources may also be threatened by climate change, and some are the subject of listing petitions themselves. Although animals can adapt to changing environmental conditions, the USFWS determined that the polar bear’s physiological and physical characteristics constrain its ability to adapt behaviorally “to rapid and extensive alteration” sea-ice habitat.
Under the statutory factors for listing, the USFWS determined that the polar bear is threatened by ongoing and projected changes in sea ice habitat.17 But it also determined that “there are no known regulatory mechanisms in place at the national or international level that directly and effectively address the primary threat to polar bears — the rangewide loss of sea ice habitat within the foreseeable future.” The Service acknowledged that “some existing regulatory mechanisms … address anthropogenic causes of climate change,” but found that “these mechanisms are not expected to be effective in counteracting the worldwide growth of GHG emissions within the foreseeable future.” Throughout the listing decision, the USFWS emphasized that oil and gas exploration, development and production in polar bear habitat do not threaten the bear, due to the following: (1) current and future mitigation; (2) historical information on the level of these activities in polar bear habitat; “(3) the lack of direct quantifiable impacts to polar bear habitat from these activities noted to date in Alaska; (4) the current availability of suitable alternative habitat; and (5) the limited and localized nature of the development activities, or possible events, such as oil spills.”
To purchase the entire Expert Commentary on lexis.com (subscription required), please click here.