Climate Change and the Polar Bear: Is the Endangered Species Act Up to the Task?

• Publication year: 2010

§ 27 Alaska L. Rev. 125. CLIMATE CHANGE AND THE POLAR BEAR: IS THE ENDANGERED SPECIES ACT UP TO THE TASK?

Alaska Law Review
Volume 27, No. 1, June 2010
Cited: 27 Alaska L. Rev. 125

CLIMATE CHANGE AND THE POLAR BEAR: IS THE ENDANGERED SPECIES ACT UP TO THE TASK?

MAGGIE KUHN ^[*]

ABSTRACT

In this Note, the Author addresses the plausibility of using the Endangered Species Act (ESA) to combat greenhouse gas emissions. She concludes that the ESA is not an appropriate tool for tackling climate change. While the ESA was drafted broadly enough that it could apply to activities contributing to climate change, it would be ultimately ineffective because it cannot apply internationally. However, the ESA represents a valuable symbolic tool. By listing species such as the polar bear under the ESA, public awareness of climate change can be increased, ultimately leading to greater support for comprehensive carbon emission regulation.

TABLE OF CONTENTS

INTRODUCTION................................................................................................126

I. THE ENDANGERED SPECIES ACT: AN OVERVIEW...............................129

A. The Listing Requirements Under Section 4............................129

B. Consultation for Federal Actions Under Section 7................130

C. Prohibition on Takings Under Section 9.................................135

II. THE POLAR BEAR'S LISTING................................................................138

A. Adverse Modification of the Polar Bear's Habitat.................138

B. The 4(d) Exception.....................................................................140

III. THE ENDANGERED SPECIES ACT AND CLIMATE CHANGE................143

A. Application to Various Private and Public Actions..............143

1. Major Carbon Emitters..........................................................143

2. Extraction of Minerals that Lead to Carbon Emissions: Chukchi Sea Leases.................................................................146

B. Arguments For and Against the Endangered Species Act's Application to Greenhouse Gases..................................148

C. An Appropriate Time for the God Squad to Act...................149

CONCLUSION...................................................................................................126

INTRODUCTION

Over the past decade, global warming has become one of the most critical issues facing the worldwide community. Ten years ago, the debate focused on whether human activities are contributing to or speeding up climate change. Today, however, the scientific community has come to the conclusion that climate change is already occurring, and carbon emissions from human activities around the globe are speeding up the process. ^[1] The scientific evidence compiled by thousands of researchers worldwide shows that humans are causing a rapid change in climate across the globe, which could have catastrophic results. ^[2]

The debate has now shifted from the existence and extent of climate change to what actions we must take in order to slow down the rapid changes already occurring. Global warming is a global problem that will require cooperation from countries throughout the world, or at least the several largest emitters of carbon dioxide. ^[3] An individual country cannot achieve significant worldwide emissions reductions on its own. Many ideas have been suggested, but, politically, it has been hard for countries around the world to come to an agreement. While various countries have signed the Kyoto Protocol, giving each country a timetable by which to reduce emissions, the United States has not joined. ^[4] The United States, China, and other large emitters did participate in the Copenhagen Accord in December 2009, though no legally binding agreement was reached. ^[5]

Meanwhile, although the European Union has adopted its own climate change policies, the United States has not passed legislation to deal with carbon emissions. Commentators have called for new legislation to regulate emissions through a tax system or a cap-and-trade system, but action has been slow. The Waxman-Markey Bill ^[6] passed the House in June 2009 ^[7] but the Senate has not yet voted on a companion bill. In the meantime, a number of citizens' groups have filed lawsuits arguing that several of the United States' current laws should be used to reduce carbon emissions. For example, significant litigation has addressed the Environmental Protection Agency's (EPA) resistance to regulating greenhouse gases under the Clean Air Act. ^[8] Under the Obama administration, the EPA has begun rulemakings under the current Clean Air Act. ^[9] Attention has also turned to another mechanism, the Endangered Species Act (ESA).

The Secretary of the Interior listed the polar bear as a threatened species under the ESA in May 2008. ^[10] The Secretary cited the significant reduction of sea ice as the reason for the listing, but was careful not to mention the role of global warming. ^[11] The ESA creates a web of broad protections for both endangered and threatened species. Thus, activities that contribute to the melting of sea ice (for example, carbon emissions) are potential targets for both the Section 7 consultation requirements and the Section 9 takings prohibitions found in the ESA. ^[12] Because the Arctic is showing signs of warming more rapidly than the rest of the world, ^[13] the polar bear has become the poster child for species threatened by global warming. ^[14] However, climate change threatens the existence of thousands of species, ^[15] and, therefore, the ESA will most likely see a dramatic increase in the number of listed species over the next several decades. The Center for Biological Diversity has filed petitions with the Fish and Wildlife Service seeking the listing of several more species. ^[16]

Thus, the question becomes how to use the ESA to protect species threatened by a worldwide problem. The ESA, being one of the most powerful environmental statutes ever enacted, ^[17] offers several tools for solving this problem. Climate change, however, is a complex problem that will need complex solutions. This Note argues that even though the ESA could be used to regulate greenhouse gas (GHG) emissions, and even though regulation of GHG emissions is desirable, the ESA is not the appropriate tool for regulating emissions. Given the ESA's strong language, the United States Department of the Interior may be unable to refuse to act against global warming under the ESA; therefore, rather than declining to act and risking a lawsuit, it is preferable for the Endangered Species Committee to invoke its authority to exempt matters from the ESA. At the same time, regulation of GHG emissions should be pursued under other laws, including comprehensive new climate legislation that obviates regulation under the ESA. Global warming will require global participation, something that the ESA cannot provide. While the ESA could serve as the United States' domestic approach for joining a global regime, the ESA is inferior to other domestic approaches.

Furthermore, the regulations promulgated in 2008, which carve out a special rule for the protection of the polar bear, are misguided and go against the spirit of the ESA. There are other legally available options to keep the polar bear and other species on the "endangered" or "threatened" lists without triggering the regulation of carbon emissions.

Part I of this Note gives an overview of the Endangered Species Act and the protections it offers to endangered and threatened species. The listing requirements of Section 4 are discussed, followed by an overview of Sections 7 and 9, the two major tools used for protecting species. Part II discusses the plight of the polar bear and the reasons why the species was listed as threatened under the ESA, including an overview of the process to have the polar bear listed, as well as the regulations promulgated for its protection. Part III begins by analyzing how the ESA can be used to regulate carbon emissions, and concludes by discussing the pros and cons of such an approach.

I. THE ENDANGERED SPECIES ACT: AN OVERVIEW

A. The Listing Requirements Under Section 4

Section 4 of the ESA authorizes the Fish and Wildlife Service (FWS) to identify species as either "endangered" or "threatened." ^[18] Once listed, the FWS must designate the species' critical habitat and develop a recovery plan. ^[19]

Section 4(l)(a) requires the FWS to:

Determine whether any species is an endangered species or a threatened species because of any of the following factors: the present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; other natural or manmade factors affecting its continued existence. ^[20]

An endangered species is a species that is "in danger of extinction throughout all or a significant portion of its range." ^[21] A threatened species is one that is likely to become endangered within the foreseeable future. ^[22] Either the Secretary of the Interior or the Secretary of Commerce can list species after an initiative by the FWS or the National Marine Fisheries Service (NMFS), or in response to an interested party's petition. ^[23]

Section 4(1) is a mandate. Once a petition is filed, the FWS is...