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"An Animal to Save the World":

Lawyers at the Center for Biological Diversity spent years looking for "an animal to save the world." Their criteria: A charismatic animal dependent upon arctic ice habitat threatened by global warming that could be listed under the Endangered Species Act. The Kittlitz's murrelet didn't cut it, nor did an arctic spider or Carribean coral species. The polar bear, however, is another story. This year the polar bear joined the nearly 2,000 species listed as threatened or endangered under the ESA, and instantly became the new mascot for global warming policy. The question now is whether the polar bear will be more than just a symbol.

I discussed this issue yesterday on a panel at AEI with Bryan Arroyo, assistant director for the Endangered Species Program at the U.S. Fish and Wildlife Service. If a video or transcript of the event become available, I will post a link.

Arroyo and I agreed on many of the legal implications of the polar bear listing. For instance, listing the polar bear as "threatened" triggers its classification as a "depleted species" under the Marine Mammal Protection Act (MMPA). This means an immediate ban on the importation of sport-hunting trophies from Canada. Why does this matter? Because sport-hunting (like it or not) is an important source of revenue for community-based conservation programs. Such programs have been important for polar bear conservation in Canada, and will become ever more important if the loss of arctic sea ice habitat is a big a threat to polar bear survival as many fear.

We also agreed that some conservative complaints are overstated. There is little risk that the federal government, or even a wayward federal judge, will hold that some power plant or other large greenhouse gas emitter is guilty of "taking" polar bears in violation of the ESA. As broad as the ESA's take prohibition may be, it has never been interpreted to reach such attenuated private harm.

The interesting question is what the polar bear listing will mean for projects that require a federal permit. Under Section 7 of the ESA, the federal government must "insure" that any actions authorized, funded, or permitted by any federal agency do not jeopardize an endangered or threatened species or destroy critical habitat for such a species. In my opinion, this means that the federal government will have a very difficult time approving new oil and gas leases in the arctic, and ESA consultation could well be required for federal projects and permits that could produce increased GHG emissions. Such actions will be allowed, in all likelihood, but simply requiring consultation can increase the time and expense of such activities.

Arroyo explained the administration's position that consultation should not be required for permitted activities that will increase GHG emissions, and outlined how the Interior Department has sought to "harmonize" polar bear protection with existing regulations under the MMPA. But he agreed that there is likely to be a substantial amount of litigation challenging administration policy, and that such litigation could have a substantial effect. If nothing else, it will devote FWS staff and resources away from other activities (e.g. actual conservation efforts).

The polar bear listing, and consequent regulatory restrictions, will be the subject of court battles for many years. CBD is already challenging the Interior Department's efforts to limit the listing's fallout and failure to designate critical habitat. Alaska Governor Sarah Palin also announced her intent to challenge the validity of the listing. Whatever the outcome of this litigation, one thing is certain: The listing will do very little to conserve polar bear populations. Even if the listing spurs greater action on climate change, it will be too little, too late to address the projected loss of sea ice of the next few decades and (as I note above) it could complicate other conservation efforts. The polar bear may be an "animal to save the world," but the Endangered Species Act will do little save the bear.

Floridan:
"Because sport-hunting (like it or not) is an important source of revenue for community-based conservation programs. Such programs have been important for polar bear conservation in Canada . . . "

Can you provide any links or specific information on this?
6.10.2008 8:42am
Jonathan H. Adler (mail) (www):
Floridan -

Sure. For a start, here's a passage from the CRS report on the polar bear listing:
Under ESA, the Secretary is required to take into account foreign polar bear conservation programs, including conservation hunting programs involving non-local (including U.S.) hunters. However, an ESA listing as "threatened" triggers an automatic listing as "depleted" under the MMPA, a listing that would prevent U.S. citizens from importing polar bear products into the United States. Such an import ban, effectively stopping U.S. participation in conservation hunting programs, is likely to seriously compromise successful Canadian community-based conservation programs.
The CRS' source is: M. M. R. Freeman and G. W. Wenzel, "The Nature and Significance of Polar Bear
Conservation Hunting in the Canadian Arctic," Arctic, v. 59, no. 1 (2006): 21-30. For more info, one place to look is the background on the MMPA amendments that allowed the importation of sport-hunting trophies in the first place or the Canadian government's statements/views on the ESA listing.

JHA
6.10.2008 8:52am
Bill Dyer (mail) (www):
Alaska's popular Gov. Sarah Palin (in the news now as a potential Veep choice for John McCain's ticket) has both spoken out against the polar bear listing and sued to stop radical environmentalists from using misusing it and the Endangered Species Act in the their "stop global warming" campaign. This position is only one of many reasons I'm a fan of hers.
6.10.2008 9:07am
Bill Dyer (mail) (www):
Ah, sorry, missed your last paragraph Prof. Adler, re that very thing! Oh well, more links.
6.10.2008 9:09am
xx:
Bill - I don't think challenging a failure to designate critical habitat is very radical, since the EPA is required to do so under the terms of the Act. The EPA never designates habitat absent court order, which might be sound economics since they have a backlog of proposed listings that the agency could better spend its mony on, but seems like a clear statutory violation.
6.10.2008 9:50am
wfjag:
You overlook an obvious reason for the Center for Biological Diversity's efforts to have the Polar Bear listed as a threatened species. Money. See MICHAEL S. GREVE, ARTICLE: THE PRIVATE ENFORCEMENT OF ENVIRONMENTAL LAW, 65 Tul. L. Rev. 339 (Dec. 1990), which outlined how environmental groups have used the citizens suit provisions of various environmental laws to fund their operations by attorneys fees awards and settlements paid to private organizations of their choosing. This is contrasted with payment of fines, 100% of which go the US Treasury.

I think you underestimate the potential impact of a "threatened" listing under the ESA. The Northern Spotted Owl was listed as "threatened." That listing was used to essentially stop logging on private lands in the Pacific Northwest -- which may have been the actual object of the environmenal groups. Whether that actually improved the habitat is open to question.
6.10.2008 10:55am
DangerMouse:
As broad as the ESA's take prohibition may be, it has never been interpreted to reach such attenuated private harm.

You really don't understand the mindset of liberal judges. "Never been interpreted" only means "groundbreaking new legal theory" to be announced by some left wing judge in the future.

Honestly, it's just plain dumb to assume that just because something has "never been interpreted" one way means it won't, especially when liberal judges are clammoring to make their place in the sun on their pet political issues. What's stopping them? Truly, what is stopping them? Nothing. Nothing stops them. And since you admit that this will be the subject of many court battles in the future (implicltly assuming how much of our lives will be run by the courts), why can't you see that the judges will do whatever they want?
6.10.2008 11:08am
Richard Aubrey (mail):
Give the government power with broad limits on the presumption it would never be silly enough to actually go as far as those broad limits.
Who's fooling whom?
6.10.2008 12:09pm
xx:
DangerMouse, your fantasy of how judges operate is completely discordant with reality.
6.10.2008 12:37pm
Smokey:
xx:
DangerMouse, your fantasy of how judges operate is completely discordant with reality.
Why, exactly?
6.10.2008 1:01pm
DangerMouse:
DangerMouse, your fantasy of how judges operate is completely discordant with reality.

Perhaps you'd like to tell me where, exactly, I went wrong?
6.10.2008 1:23pm
xx:
Because the viewpoint is entirely divorced from real world experience, and depends on viewing "liberal judges" as something other than relatively normal, highly educated, typically quite-intelligent individuals whom we happen to disagree with vigorously on some issues.

I think, for example, that it would be nearly impossible for someone to clerk for Federal court for a year or more and come away with the impression that any of the judges on that court, liberal or conservantive, believe that they can "do whatever they want."
6.10.2008 2:19pm
Sarcastro (www):
I fully support DangerMouse. Liberal Judges, unlike normal judges, are unbound by any sense of morality or professionalism.

Indeed, they are eager to use tortured logic in their cases for "kicks." It starts small, with a dubious habeas exhaustion claim. But soon they're finding rights willy-nilly and granting standing to organizations left and right.

Conservative Judges (for there are only 2 types of judges) arrive at consistantly pro-business and executive powers because that's the Truth, and they are all honorable heroes who are willing to stand up for the Truth.
6.10.2008 2:19pm
megapotamus (mail):
Since we have civil rights rulings that declare a declination to discriminate is actually discrimination I don't think we need doubt the creativity of our jurists but there is a more fundamental problem here. We know what the polar bears are supposedly endangered from: receding icecaps. But are they receding? Is there a loss of habitat from warming? It would be quite a trick, since the globe is NOT warming but cooling and polar bear populations are not diminishing but expanding. Icepack thinning is perpetually obsessed over but this is a local phenomenon as is icepack thickening, which is documented in many areas but not announced on CNN. But again, do not assume that anything like facts are neccessary or sufficient when dealing with green tyranny.
megapotamus
6.10.2008 2:22pm
narby (mail):

The interesting question is what the polar bear listing will mean for projects that require a federal permit. Under Section 7 of the ESA, the federal government must "insure" that any actions authorized, funded, or permitted by any federal agency do not jeopardize an endangered or threatened species or destroy critical habitat for such a species. In my opinion, this means that the federal government will have a very difficult time approving new oil and gas leases in the arctic


We're talking *Global* warming, not just the arctic. The government will have a hard time permitting anything, anywhere. Just the fact that humans are involved in something means they breathe the dangerous toxic waste CO2 that causes GW. That jeopardizes the polar bear, in whatever tiny amount, so nothing can ever be permitted again.
6.10.2008 2:25pm
Al Maviva (mail):
Oh, I'm the very model of Charismatic Megafauna,
Stopping mother Gaia from a future global sauna,
I know chaps at Greenpeace and Ice/CO2 historical,
Paleolithic to the rock 'n' roll, in order categorical,
I'm very well acquainted with environmental nuisance suits,
Brought by Chevy Chasers in Land Rovers and hiking boots;
About the global warming I'm swarming with a lot of news,
At its root the problem is caused by Doug Feith and the f***in' um... neo-cons.
I'm very much imperiled on the floating ice blocks brother,
After taking pictures I go swimming to my mother on another.
In short, for wonks like Leo, Ed, John and Goldie Haun-a,
I am the very model of charismatic mega fauna.

[Greenpeace Chorus: He's the very model of charismatic megafauna!]
6.10.2008 2:41pm
J. (mail):
"Because the viewpoint is entirely divorced from real world experience"

Huh? The idea that activist judges, liberal or otherwise, don't look for ways to impose their views is a better description of "divorced from real world experience". See the comment about discrimination above, or the ninth circuit reversal rate for examples.

The trouble here is that law is one of the few professions in which people who are innumerate and completely ignorant of science can attain the power to impose all sorts of idiocy on the public.
6.10.2008 2:44pm
JustCurious (mail):
Why is it they had to shop around for this "magical beast" to 'save the world' and came up with the cute (albeit extremely not-cuddly) polar bear?

Who here believes that the 9th Circuit Court in Cali won't use this as yet another base for their legislation from the bench?

Has anyone noticed that tho the polar bear population has been steadily increasing, the decision to designate it threatened was ultimately based on a computer model?

Inquiring minds etc, etc.
6.10.2008 2:47pm
xx:
megapotamus - you would be more credible posting under the name Sarcastro.
6.10.2008 2:54pm
Maxwell (mail):
Are polar bears, as a species, only 600 to 700 years old?

After all, the climate was FAR warmer in the 1200s-1400s. You know, the time when the Vikings were farming in Greenland and completely documented it in their sagas.

I always find it amazing that the tree huggers choose to ignore that. no too long ago, period. One thing's for sure: SUVs didn't cause it. One other things is also for sure: The world certainly did not come to an end during that period.
6.10.2008 3:25pm
Billy Beck (www):
"...relatively normal, highly educated, typically quite-intelligent individuals whom we happen to disagree with vigorously on some issues."
...who also get to summarily direct the force of government whether what they say they think makes a lick of sense.

Other than that; yeah, they're pretty much like everyone else.
6.10.2008 3:35pm
Smokey:
xx:
megapotamus - you would be more credible posting under the name Sarcastro.
And here I was just about to say that the comment by megapotamus was accurate in its entirety, as well as in every specific detail. Here, look at it again, and tell us what isn't factual [and thus credible]:
Since we have civil rights rulings that declare a declination to discriminate is actually discrimination I don't think we need doubt the creativity of our jurists but there is a more fundamental problem here. We know what the polar bears are supposedly endangered from: receding icecaps. But are they receding? Is there a loss of habitat from warming? It would be quite a trick, since the globe is NOT warming but cooling and polar bear populations are not diminishing but expanding. Icepack thinning is perpetually obsessed over but this is a local phenomenon as is icepack thickening, which is documented in many areas but not announced on CNN. But again, do not assume that anything like facts are neccessary or sufficient when dealing with green tyranny.
megapotamus
xx, it is you who lacks credibility my little green friend.


Also, I'm astonished at the talent displayed by Al Maviva, even with one line that doen't quite rhyme. Kudos!
6.10.2008 3:35pm
Roger Sweeny (mail):
If the Bush administration had convictions and a sense of strategy (0 for 2?), they would not push for the most harmless interpretation of the relevant statutes. What will that accomplish? If the next administration doesn't change them, it will mean long drawn out court challenges. More likely, some time after January 20, the new administration will adopt different, more harmful interpretations. So what have you really gained?

If the Bush administration had convictions and a sense of strategy, they would say, "This designation may well have bad consequences A, B, and C. And it won't do much good for the polar bear either. Therefore, we propose the following changes to statutes X, Y, and Z to assure that the bad consequences don't occur." Of course, the Democratic Congress will vote down (or refuse to consider) the changes.

That then gives the Republicans a chance to say, "we're the responsible environmentalists" and maybe to have an actual debate about what should be done.

Yeah, couldn't happen.
6.10.2008 3:54pm
LarryA (mail) (www):
Arroyo explained the administration's position that...
This administration's position anyway.

Oil from ANWR? Forgetaboutit.
6.10.2008 3:59pm
Giya:

Are polar bears, as a species, only 600 to 700 years old?

After all, the climate was FAR warmer in the 1200s-1400s. You know, the time when the Vikings were farming in Greenland and completely documented it in their sagas.

I always find it amazing that the tree huggers choose to ignore that. no too long ago, period. One thing's for sure: SUVs didn't cause it. One other things is also for sure: The world certainly did not come to an end during that period.


Silly Maxwell. There you go trying to apply logic the Environmentalists. Most environmentalists don't care a lick about allowing the laws of nature to occur, well, naturally. Humans are simultaneously so powerful that we can save and destroy the earth on one hand, yet so fragile and impotent that when the climate heats up by a few degrees our species will perish into extinction. The same can be said for earth itself/Gaia/Nature or whatever word title floats your boat. Nature is supremely powerful yet intricately delicate. Well yes, current systems are delicate and susceptible to perturbations, but Nature will adapt and survive no matter what we do (short of literally blowing up the entire planet).

It's like the environment is a giant zoo where no one is allowed to change the paint, the exhibits are always open, and the animals never die. I'm grateful that we live in a world full of wonderful species, but I do not expect polar bears and blue whales to be around forever. How can we be so arrogant as to claim that WE know what's best for nature?
6.10.2008 4:13pm
Raoul Ortega (mail):
I do not expect polar bears and blue whales to be around forever

We should celebrate when species go extinct. That's because extinction is a part of Evolution. And only bitter, deluded Xtian Creationists don't believe in The Gospel of Evolution According to St.Darwin.
6.10.2008 5:23pm
pmorem (mail):
If the Polar Bear listing under ESA was initiated to "save the planet", then it seems to me that abuse of that listing is not only possible, but intended.
6.10.2008 5:26pm
comatus (mail):
Al Maviva, very nice work indeed. May I place my doily, as'twere, upon your cart?
6.10.2008 5:40pm
Dave Hardy (mail) (www):
Taking under sec. 9 isn't going to be the issue. It's consultation under sec. 7(a)(2), and possibly consultation 7(a)(1).
6.10.2008 11:03pm
EIDE_Interface (mail):
What all this proves is the sheer power of human religious beliefs trumps all. I'm talking about the new religion of environmentalism and "animal rights". Just as powerful as the old religions. Man is truly a unique beast.
6.12.2008 2:12pm