Originally posted at the Wonk Room.
After years of delay, Secretary of the Interior Dirk
Kempthorne made a landmark decision on whether global warming pollution
is regulated by the Endangered Species Act (ESA). Kempthorne ruled that
the polar bear should be classified as a “threatened species” due to the
decline of polar sea ice, critical to its survival. Kempthorne stated:
They are likely to become endangered in the near future.
The Department of Interior, under Secretary Dirk Kempthorne, fought for several years in the courts since 2005 to avoid making a decision on whether the precipitous decline in Arctic sea ice due to global warming is making the polar bear an endangered species. Fish and Wildlife Service director Dale Hall testified in January that there was no significant scientific uncertainty in the endangerment posed by global warming to polar bears—the only legal justification under the Endangered Species Act for a delay.
Kempthone’s decision to follow the science is in marked contrast to Environmental Protection Agency Administrator Stephen Johnson’s action to override his staff in refusing to regulate tailpipe greenhouse gas emissions.
However, Kempthorne also argued vigorously that his decison does not compel the Bush administration to construct a plan to regulate greenhouse gas emissions, repeating President Bush’s entirely spurious claim that would be a “wholly inappropriate use” of the Endangered Species Act. The Interior news release announces, “Rule will allow continuation of vital energy production in Alaska.” Kempthorne claimed that the Marine Mammal Protection Act (MMPA) is “more stringent” than the ESA, despite the court ruling that compelled him to make today’s ruling stating that “the protections afforded under the ESA far surpass those provided by the MMPA.”
Despite his protestations, Kempthorne’s decision clearly calls into question the legality of the sale of oil and gas drilling rights in polar bear habitat on February 6, while the polar bear decision was being illegally delayed.
Kempthorne complained that the Endangered Species Act is “one of the most inflexible” pieces of legislation because it didn’t allow him to consider economic impacts when protecting species like the polar bear from extinction.
From the Department of Interior press release on the 368-page rule:
To make sure the ESA is not misused to regulate global climate change, Kempthorne promised the following actions:
- The U.S. Fish and Wildlife Service is proposing a 4(d) rule that states that if an activity is permissible under the stricter standards of the Marine Mammal Protection Act, it is also permissible under the ESA with respect to the polar bear. This rule, effective immediately, 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.
- Director Hall will issue guidance to staff that the best scientific data available today cannot make a causal connection between harm to listed species or their habitats and greenhouse gas emissions from a specific facility, or resource development project or government action.
- The Department will issue a Solicitor’s Opinion further clarifying these points.
- The Department will propose common sense modifications to the existing ESA regulatory language to prevent abuse of this listing to erect a back-door climate policy outside our normal system of political accountability.
Andy Revkin at Dot Earth concludes, “So this leaves everything as it was, in a way, with the bears facing a transforming ecosystem and environmentalists successful in their litigation, but not necessarily empowered by the listing.” At Climate Progress Joe Romm calls the decision “bye-polar disorder.”
Sierra Club spokesman Josh Dorner tells the Wonk Room, “This is the regulatory equivalent of a signing statement—only this one gets to be challenged in court.”