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Polar Bear PoliticsListing polar bears under the Endangered Species Act won't do much good, but we should do it anyway.

By Holly Doremus
Posted Thursday, Jan. 17, 2008, at 12:24 PM ET

(Continued from page 1)

The service would never try to regulate individual electricity use, and it is inconceivable that a citizen suit against someone who drives a Hummer would succeed. Large emitters like the major utilities are therefore the more likely targets for legal action. (They're already defending themselves against a tort suit brought by a coalition of states claiming that their carbon emissions are harming people and the environment.) But the Supreme Court suggested in 1995 that establishing an ESA violation requires proof of harm to an individual animal. Proving that a utility's emissions harmed a polar bear would be a daunting task for environmental plaintiffs. Even the largest emitters are not to blame for global warming in the unambiguous way that hunting or land development can harm species.

At best, the ESA can be used to compel major emitters to seek a permit allowing their emissions and to force consultation with the service over emissions caused or authorized by a federal agency. In that case, the service would have to identify an acceptable level of emissions and decide whether everything practicable had been done to reduce the impacts on listed species. What sorts of answers the service would come up with, and what good they would do the polar bear, is anyone's guess.

None of this provides a sound legal argument against listing, however. The service is not required to prove that naming the polar bear as a threatened species will solve all its problems. Invoking the ESA may have beneficial effects even if it does not directly save sea ice. For example, the listing of the California gnatcatcher prompted the Golden State to adopt new conservation laws, and the prospect of listing the coho salmon led Oregon to devise a new salmon conservation plan. Listing of the charismatic polar bear might increase political support for new regulatory measures. The polar bear faces other threats that the ESA is better suited to address, such as the impacts of oil exploration and production activities. Listing will add a legal weapon for combating arctic oil development.

Of course, there are political risks to pushing the limits of the ESA—namely, the fear that if conservation measures outstrip their political support, Congress might repeal or cripple the ESA. That fear motivated the spirit of compromise that dominated ESA implementation under Bill Clinton. A few years ago, environmental groups sued over the operation of a federal irrigation project that was drying up large stretches of the Rio Grande. They prevailed in court, winning a judgment requiring the Bureau of Reclamation to consult with the Fish and Wildlife Service. But the irrigation project had plenty of friends, including the city of Albuquerque, which was looking to it for drinking water. Congress effectively reversed the court victory by ordering the bureau not to divert any water from people to fish. There was even talk of removing all water projects from the ambit of the ESA.

Such political risks seem low in this case, however. The polar bear surely has more political sway than a little-known minnow, big polluters are less sympathetic than farmers and municipal water users, and Congress is more sympathetic to environmental protection than it used to be.

The arguments against listing the polar bear don't stand up either legally or as a matter of policy. The polar bear fits the law's definition of a threatened species. Although the ESA cannot solve the problem of global warming, it might help push the nation toward a more effective solution. Listing is not likely to result in wholesale rebellion against the ESA, and it might help the bear in small ways, by forcing offshore oil interests in the arctic to take better account of their environmental impacts. Secretary Kempthorne should follow the law and add the polar bear to the protected list.

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Holly Doremus is a professor of law at the University of California-Davis and a member-scholar of the Center for Progressive Reform.
Photograph of polar bear by Tom Brakefield/Stockbyte.
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