Polar bears and greenhouse gases: Can one live with the other?

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A federal judge ruled Monday that the government did not breach its obligations under the Endangered Species Act by failing to consider greenhouse gas emissions in efforts to protect the polar bear.

U.S. District Judge Emmet G. Sullivan also concluded that federal officials were within their authority in a rule allowing ‘incidental’ harm to polar bears that might occur as a result of oil and gas activities in the Arctic -- provided that those activities already are authorized under the Marine Mammal Protection Act.

The judge did find, however, that the government erred in not undertaking an environmental review before it issued its special rule on polar bears in 2008 -- a shortcoming so serious that he sent the issue back for a new review.

The suit was filed by advocates for the polar bears, which are listed as threatened under the Endangered Species Act.

Warmer temperatures are shrinking the bears’ primary habitat on the sea ice, making them a focal point in the debate over greenhouse gas emissions. Conservationists argue there is no way to ensure the bears’ survival unless their biggest threat -- global warming -- is attacked, perhaps thousands of miles from where the bears live.

A variety of oil industry and business groups, along with the governor of Alaska, had joined the government in opposing the suit filed by four leading conservation organizations. They argue that it is impossible to draw a scientific link between, say, a new coal power plant n Arkansas and the shrinking of the ice footprint in Alaska.

The court in its ruling Monday from Washington, D.C., didn’t address the merits of either argument but did say that the government had met its obligations under the Endangered Species Act. The judge said the act gives federal regulators broad discretion to decide what kinds of harm to let occur to species listed as merely threatened, rather than endangered.

‘The question at the heart of this litigation -- whether ESA is an effective or appropriate tool to address the threat of climate change -- is not a question that this court can decide based upon its own independent assessment, particularly in the abstract,’ the judge wrote.

‘The answer to that question will ultimately be grounded in science and policy determinations that are beyond the purview of this court,’ he said. ‘The question this court must decide is whether the agency has articulated a rational basis for the protections set forth in its special rule for the polar bear...The court finds that the [U.S. Fish and Wildlife] Service has done so.’

Conservationists had hoped for a ruling that might have opened the door to citizens’ lawsuits against greenhouse gas emitters around the country who didn’t have a permit to harm polar bears.

That would have been legally easier to accomplish if they had not already lost, in June, their legal bid to have polar bears declared endangered -- which carries stricter prohibitions against harm -- instead of merely threatened. The law gives the government more leeway in what kind of harm it allows to threatened species, the judge noted.

The plaintiffs -- including the Center for Biological Diversity, the Natural Resources Defense Council, Greenpeace and Defenders of Wildlife -- argued that the Interior Department has a blanket regulation applying ‘incidental take’ protections to both endangered and threatened species. Furthermore, they said, the department shouldn’t have violated its own policy by adopting the special exemptions for polar bears.

‘The polar bear was the first species added to the endangered species list solely because of threats to the species from global warming. Today’s ruling does not limit the applicability of the ESA to greenhouse gas emissions affecting species listed as endangered under the act, or to other threatened species for which Interior has not issued a specific exemption,’ the plaintiffs noted in a statement.

‘Just this summer, Arctic sea ice reached its second lowest level on record, making polar bear protections more important than ever,’ added Jason Rylander, senior attorney for Defenders of Wildlife. ‘Only by acknowledging and accounting for the dramatic effects of climate change can this administration give this Arctic icon a realistic chance of survival.’

The special rule under challenge also provides an exception from the prohibitions against harm to bears for activities already authorized under the Marine Mammal Protection Act -- essentially, oil and gas exploration and production across the North Slope. Such production has long coexisted with polar bears.
Very few bears have been killed as a direct result of oil and gas production, and Sullivan said it was reasonable to conclude that existing protections are sufficient. Some are even more stringent than the Endangered Species Act.

‘We are pleased that the judge decided that the Endangered Species Act is not the proper way to regulate climate change,’ said Eric Wohlschlegel of the American Petroleum Institute. He declined to say more until lawyers had scrutinized the decision.

A spokesman for the government of Alaska did not respond to requests for comment.

The judge’s ruling changes the immediate status quo very little; the special rule was struck down, but an interim rule that is back in effect is not much different.

The big impact, conservationists say, is that the government will now have to consider the environmental effects of allowing exemptions not only for greenhouse gases, but possibly for pesticides, mercury, PCBs and other pollutants that make their way into the Arctic food chain.

‘The real-world impact is the full scope of protections for the polar bear is back in the Obama administration’s court,’ Kassie Siegel of the Center for Biological Diversity said in an interview. ‘They have to do the review, they have to reissue the rule, and they’re getting a second chance to do things right by the polar bear.’

Sullivan also issued a separate ruling upholding the federal government’s ban on the importing of heads and hides of polar bears shot by sport hunters in Canada, the only Arctic nation in which they can legally be hunted for non-subsistence purposes.

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-- Kim Murphy in Seattle