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Polar Bears in Limbo How a legal morass could save the environment.

By Holly DoremusPosted Tuesday, May 20, 2008, at 3:33 PM ET

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Four months ago, Holly Doremus pointed out that listing the polar bears wouldn't do much good, but said we should do it anyway. Chris Mooney described how to win a global-warming lawsuit. Anne Applebaum reported from Berlin on the baby polar bear that became an anti-global-warming celebrity. Daniel Engber reviewed Arctic Tale, a faux documentary about the plight of the polar bears. Rebecca Onion explained why environmentalists have given up on saving the Salton Sea.

No wonder the administration wants to avoid consultation. (The courts may well be just as reluctant to enforce the law.) But sometimes it's better to have the wrong legal tools than to have none at all. Laws that don't quite fit can force us to pay attention to important problems and develop better tools for dealing with them.

The dispute over whether the Clean Air Act requires the government to regulate greenhouse-gas emissions from cars is an example. A deeply divided appeals court accepted (PDF) the government's argument that the Clean Air Act is not a useful tool for addressing global warming. Last year the Supreme Court reversed the decision (PDF), ruling that the plain language of the Clean Air Act covered carbon dioxide emissions. While it has not yet led to federal regulation of greenhouse gas-emissions, the Supreme Court's fidelity to the text of the Clean Air Act has increased the pressure on Congress to enact federal legislation better-tailored to greenhouse-gas emissions. Without a new law, we'll either have to apply a regulatory framework designed for local pollutants to a very different problem or be forced to exempt greenhouse-gas emissions from the Clean Air Act altogether. Both alternatives are unattractive.

The listing of the polar bear should present the same quandary. It doesn't tell us how to solve the global-warming problem. But it will force us to choose between giving up a goal we believe in—not causing extinctions—or facing incurable regulatory headaches. Those distasteful alternatives make comprehensive greenhouse legislation look attractive by comparison. Sometimes we need to face that kind of choice before we're willing to take our medicine.

So of course the ESA won't save the polar bear. And of course the administration is trying to dodge its apparently pointless and paralyzing duty to consult on emissions with a federal nexus. The whole thing seems ridiculous—the bears will die out anyway, so why waste our efforts on futile and confusing regulatory efforts?

Here's why: because it's important to make ourselves acknowledge that we're on a path that is inconsistent with the goals of the Endangered Species Act. The ESA should make us uncomfortable until we create the tools it lacks to address emissions broadly. Instead of restricting the scope of the ESA, we should work on replacing it with something better.

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Holly Doremus is a professor of law at the University of California-Berkeley and the University of California-Davis and a member-scholar of the Center for Progressive Reform.

Illustration by Mark Alan Stamaty.

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