Polar bear "special rule" remains; trend toward climate change "regulation by litigation" likely to follow suit
"The Endangered Species Act is not the proper tool to deal with a global issue - global warming," said Secretary of the Interior Ken Salazar on May 8, in announcing that the administration would retain the Bush era “special rule” under section 4(d) of the ESA, aimed at protecting the polar bear. Despite Salazar’s proclamation, however, environmental advocates are increasingly predicating climate change-based lawsuits on the ESA. Lawsuits seeking protection for specific animals, such as the Pika and the Alaskan Kittlitz’s Murrelet, focus on the indirect effects of global warming on those animals. Other lawsuits use the ESA as a platform to advocate against climate change on a much more general level. The ESA lawsuits are part of a larger trend toward “regulation by litigation,” in which environmental advocates have sought to regulate greenhouse gas emissions through lawsuits based on a host of US laws, such as the Energy Policy and Conservation Act, the Clean Air Act, the Energy Policy Act of 1992, the Administrative Procedure Act, the National Environmental Policy Act (“NEPA”), the Federal Land Policy and Management Act (“FLPMA”), and the Mineral Leasing Act (“MLA”).
The latest round of lawsuits may stem from the continuation of the polar bear exception, also known as the “Alaska Gap.” While the special rule aims to protect the polar bear, it applies only to activities in Alaska, and exempts the “incidental” effects of activities outside the state. Salazar had authority to revoke the rule until May 10, under the Omnibus Appropriations Act of 2009 . Salazar’s announcement came despite a large campaign against the rule. More than 1300 scientists, 53 law professors, 8 senators, U.S. representatives, California legislators, and Conservation organizations wrote letters to Salazar beseeching him to abandon the special rule. Now that he refused to use his authority to revoke the rule, environmentalists such as the Center for Biological Diversity have hailed Mr. Salazar’s decision “a gift to big oil.”
There has been considerable debate over the actual effects of global warming on the polar bear. Notably, the polar bears are already protected by protected by Title V of the Marine Mammal Protection Act, and international treaties such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora. The budget for Fiscal Year 2010 increases the funding for polar bear conservation efforts.
In a Missouri town hall meeting in late April, President Obama declared that the way to save the earth and the polar bears was to change things in “a smart, gradual way.” However gradual the Administration’s plan is, it is certain that the courts will be dealing with many attempts at regulation by litigation in the meantime.
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