Jason Rylander, Senior Staff Attorney
Defenders and our partners have long fought to protect the polar bear and other Arctic species that are at risk from climate change. When the oil and gas industry and the state of Alaska tried to overturn the polar bears’ listing as threatened under the Endangered Species Act (ESA), we went to federal court to defend it. And we successfully challenged a special regulation—known as a Section 4(d) rule—that denied the listed bear some of the protections that would ordinarily apply to threatened species under the ESA.
Yet last week, despite our pleas to provide the polar bear the full protections of the ESA, the U.S. Fish and Wildlife Service issued a nearly identical Section 4(d) rule that leaves the polar bear vulnerable to numerous threats.
First, the new 4(d) rule means that federal agencies don’t have to take climate change or carbon emissions into account when determining how a particular action or project will affect the bear or its habitat. It also renders a key ESA protection—Section 7 consultation—useless. Exempting greenhouse gas emissions and other factors from review in consultation seriously undermines a provision that courts have described as the “heart of the ESA.” Although the Service acknowledged when they listed the bear that climate change is the number one threat to its survival, this new rule means the FWS will not consult with federal agencies on actions that could exacerbate climate risks.
Second, the new rule limits ESA protections against activities that could harm or kill polar bears, incorrectly asserting that the bear is already adequately protected under the Marine Mammal Protection Act (MMPA) and other laws. In fact, the MMPA’s protections are not the same as the ESA’s. The MMPA has an entirely different definition of what it means to “take” (or kill) an animal, and it does not contain a citizen suit provision, which is an essential tool that allows conservation groups to go to court to protect a species. Regardless, the agency may not simply rely on the presence of equivalent species protections in another statute to justify a 4(d) rule without showing that the rule actually provides a conservation benefit to the polar bear. We don’t think this rule makes that showing, and an ESA rule that fails to help the species in any way is hardly fulfilling the purpose of the Endangered Species Act.
In this decision, the Obama administration has embraced a Bush-era policy that fails to take into account the single greatest threat to polar bears, and prevents actions that could help protect the species — extremely disappointing to say the least. The ESA alone cannot prevent climate change, but this 4(d) rule is the regulatory equivalent of burying one’s head in the sand to avoid the problem. Put simply, the decision puts political convenience over the needs of the polar bear and sets a dangerous precedent for the protection of other species threatened by climate change and environmental hazards. We’re looking at what actions we can take to oppose this new rule, but since the Service has already spoken, it is likely that we’ll soon go back to court to defend this iconic species.