VI. Climate Change Issues under Section 4 VI. Climate Change Issues under Section 4

• Jurisdiction: United States

VI. Climate Change Issues under Section 4

A. Petition to List the Polar Bear

In February 2005, the Center for Biological Diversity ("CBD") submitted a petition to the FWS to list the polar bear (Ursus maritimus) as threatened and to designate critical habitat. In December 2005, CBD and two other environmental groups, Greenpeace U.S.A. ("Greenpeace"), and the Natural Resources Defense Council ("NRDC"), sued the Secretary of Interior and FWS for failing to act on the petition. In response, in February 2006, FWS issued a positive 90-day petition finding for the polar bears,⁹⁵ opened a 60-day comment period, and initiated a status review of the species. In January 2007, the FWS 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.⁹⁶ The decision to propose listing the polar bear as threatened "was based on the determination that the polar bear is threatened by habitat loss and inadequate regulatory mechanisms to address sea ice recession."⁹⁷ The listing proposal indicates that, due to a high degree of uncertainty as to which areas in Alaska would qualify as critical habitat, the FWS cannot determine critical habitat at this time.⁹⁸

The FWS was required to publish a final listing determination, taking into account comments and any other new information the agency obtained, by January 9, 2008, one year from the date of the proposed rule. However, on January 7, 2008, the agency issued a bulletin indicating that it was working diligently to make a final listing decision and expected to do so

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within the next month.⁹⁹ This delay has caused significant controversy, particularly because on February 6, 2008, the Mineral 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.¹⁰⁰ Senator Kerry and Representative Markey also introduced separate but similar bills that would prohibit any oil and gas exploration activities in the Beaufort and Chukchi Seas until a final listing decision on the polar bear issued.¹⁰¹

If the FWS ultimately decides to list the polar bear as threatened, the polar bear will receive the full protection of the Act, including the take prohibition and Section 7 consultation requirements, unless the FWS issues a special rule to the contrary. The FWS, to the maximum extent practicable at the time of listing, will identify those activities that would likely violate the take prohibition.¹⁰² The key will be to what extent the FWS includes activities that contribute to global warming in that list. Typically, activities that result in take of a listed species do so by killing or injuring the species or by directly adversely altering its habitat. If activities that contribute to global warming, but are thousands of miles removed from polar bear habitat, are subject to take liability it would represent an unprecedented expansion of the reach of the ESA.

While the FWS does not expect the proposed rule to "significantly affect energy supplies, distribution, or use,"¹⁰³ it is possible that the listing of the polar bear could require all U.S. industries emitting significant amounts of greenhouse gases to consider the impacts of their activities on the polar bear. If the Act is applied in that manner, the challenge will be in determining to what extent a given project may impact the polar bear and how to quantify take, if any, resulting from the project. Predicting impacts and quantifying anticipated take is often difficult under traditional ESA circumstances. Quantifying how a project contributes to climate change that in turn reduces polar bear habitat that results in a take could be nearly impossible.

The polar bear listing could also expand traditional concepts of the project area for ESA compliance. Usually, a project proponent will coordinate with the Service to identify listed species that are present in the immediate action area. If activities that may contribute to climate change must consider their impacts on the polar bear, regardless of their location, the project area for such activities will no longer be confined to a site-specific location, but rather will encompass

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a more global scale. It will be interesting to see how the Service, the regulated community, and environmental groups respond to these issues and challenges if the polar bear is listed.

B. Petition to List 12 Penguin Species

On November 29, 2006, the Service received a petition from the CBD to list 12 penguin species in Antarctica, South America, southern Africa, New Zealand, and certain territory islands as threatened or endangered under the ESA.¹⁰⁴ On July 11, 2007, the FWS issued a 90-day finding indicating that listing "may be warranted" for ten of the penguin species.¹⁰⁵ FWS has initiated a formal status review for these species, which puts the penguins on the same path as the polar bear. FWS has requested...