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.
CBD seeks ESA protection of Kittlitz's murrelet
The Center for Biological Diversity has filed a scientific petition with the Alaska Department of Fish and Game to protect an Alaskan seabird under Alaska’s Endangered Species Act. The Center claims that the seabird, a species known as Kittlitz’s murrelet, faces extinction due to threats from global warming.
The Kittlitz’s murrelet is only the latest species that the Center has sought to add to the endangered species list due to perceived effects from global warming. Recently, the US Fish and Wildlife Service agreed to determine whether the American pika warrants protection from global warming effects under the Endangered Species Act by May, 2009, settling a lawsuit filed by the Center for the agency’s failure to make the determination in the required statutory period. Emboldened by its success, the Center vowed to commit even greater resources to similar climate litigation.
“Like the polar bear, the Kittlitz’s murrelet is being pushed toward extinction by rapid global warming in Alaska,” claims Shaye Wolf, a biologist with the Center. “If we are to save the Kittlitz’s murrelet, we must halt global warming to protect this species’ remaining habitat before it is too late.”
This is not the first time that the Center has sought protection of this seabird. In 2001, the Center sought federal endangered species protection of Kittlitz’s murrelets. However, in 2004 the US Fish and Wildlife Service determined that, while the species warranted protection, it was “precluded” from being listed due to other agency priorities. The seabird, however, is identified as a critically endangered species by the World Conservation Union.
The Kittlitz’s murrelet, named in commemoration of the German zoologist Heinrich von Kittlitz, is a small seabird that nests on open ground near the tops of the coastal mountains of Alaska and Siberia. The Kittlitz's murrelet feeds on larval fish, krill and small zooplankton close to the shore, particularly in the waters around tidewater glaciers. Activists from the Center claim that the Kittlitz’s murrelet’s dependence on these glacial waters makes it susceptible to any retreating or thinning of glaciers that may be caused by global warming.
