FYI: Lane Powell on the U.S. government’s recent polar bear protections

Top-ten JD Supra contributor Lane Powell PC has uploaded an interesting analysis of the U.S. Interior Department ‘s recent decision (via the Fish and  Wildlife Service) to place polar bears on the "endangered" list.

Polar bears are the first animals to be protected by the U.S. government’s Endangered Species Act because of global warming; and yet, in what many see as a bitter twist of irony, last week’s decision was accompanied by guidance limiting when Fish and WIldlife "will consider climate change in evaluating agency actions that might affect not just polar bears but any listed species."

The listing, however, specifically carves out from future considerations about the polar bear and its habitat any climate change impacts of facilities in the lower 48 states that emit greenhouse gases. According to the listing, ‘[T]he best scientific data available today are not sufficient to draw a causal connection between greenhouse gas emissions from a facility to effects posed to polar bears or their habitat in the Arctic.’

In other words, while we’ll see a decrease in illegal hunting of polar bears, the government’s decision does very little to curb the real reason for putting these magnificent animals on the list in the first place.

Interior Secretary Dirk Kempthorne, in his announcement of the listing and the Service’s memo, said that the ESA is not the right tool to set U.S. climate policy, and he would not allow the listing of polar bears to open the door for the ESA to regulate greenhouse gas emissions from automobiles, power plants and other sources.

Lane Powell argues that this position "runs contrary to a growing trend among the courts, including the U.S.  Supreme Court and the Ninth Circuit, to use statutes such as the ESA, the Clean Air Act and state environmental laws, to require that government agencies consider climate change impacts in their planning and permitting decisions."

No doubt the decision is a move in the right direction for polar bear survival – but is it enough? And should statutes like the ESA be used to influence climate-change planning? What’s your call? Let us know.

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