Secretary Kempthorne Announces Listing of Polar Bear as Threatened Under the Endangered Species Act, But Attempts to Limit the Listing’s Role in Regulating Climate Change

Secretary of the Interior Dirk Kempthorne announced on May 14, 2008 that he is accepting the U.S. Fish and Wildlife Service’s (Service) recommendation to list the polar bear as threatened under the Endangered Species Act. The news release with this announcement is available at the U.S. Fish & Wildlife Service Endangered Species Program Website and the final rule listing the polar bear is available at the U.S. Department of the Interior Website. Secretary Kempthorne noted that the listing is based on the best available science, which shows that the loss of the polar bear’s sea ice habitat is threatening, and will likely continue to threaten, the polar bear’s survival.

However, the Secretary emphasized that, while the legal standards of the ESA required him to list the polar bear as threatened, the listing “will not stop global climate change or prevent any sea ice from melting.” Thus, to ensure that the listing does not “open the door to the use of the ESA to regulate greenhouse gas emissions from automobiles, power plants, and other sources,” Secretary Kempthorne indicated that the Service will propose a special rule for the polar bear under Section 4(d) of the ESA, which states that if an activity is permissible under the stricter standards of the Marine Mammal Protection Act, it is also permissible under the ESA. According to the news release, this rule “will ensure the protection of the bear while allowing us to continue to develop our natural resources in the arctic region in an environmentally sound way.” The Secretary also promised that the Director of the Service, Dale Hall, will issue guidance to Service staff that the best scientific data available today cannot make a causal connection between harm to listed species or their habitat and greenhouse gas emissions from a particular facility or project.

The process of listing of the polar bear began in February 2005, when the Center for Biological Diversity submitted a petition to the Service to list the polar bear as threatened and to designate critical habitat. In December 2005, the Center for Biological Diversity and two other environmental groups, Greenpeace U.S.A. and the Natural Resources Defense Council, sued the Secretary of Interior and the Service for failing to act on the petition. In response, in February 2006, the Service issued a positive 90-day petition finding for the polar bears, opened a 60-day comment period, and initiated a status review of the species. In January 2007, the Service published in the Federal Register its 12-month petition findings that the listing was warranted and its proposed rule to list the polar bear as threatened.

Although the deadline for the final rule was January 9, 2008, the Service did not make its final listing decision until May 14. This delay caused significant controversy, particularly because on February 6, 2008, the Minerals Management Service conducted an oil and gas lease sale of 30 million acres in the Chukchi Sea off the coast of Alaska, which contain significant polar bear habitat. Environmentalists responded by filing suit in federal court in Alaska challenging the environmental analysis prepared for the lease sale.

(This post was contributed courtesy of Sandra Snodgrass, Environmental Compliance attorney in Holland & Hart's Denver Office.)