In a setback to the animal we described as the “fuzzy face of climate change,” a federal court has determined that setting aside 187,157 square miles of Arctic coastline in Alaska as “critical” polar bear habitat under the Endangered Species Act was too ambitious.
The U.S. Fish and Wildlife Service had identified the area of coastline, offshore sea ice, and islands as prime real estate for the dens of pregnant polar bears. It was also, as these things happen, prime real estate for oil and gas development. And so we have another entry in the culture wars column.
As Zac Unger explained in the current cover story for Pacific Standard magazine:
By 2008, the fight to have polar bears listed under the Endangered Species Act was in full swing, and both the left and the right latched onto polar-bear science as a proxy war for everything having to do with climate, energy, and the limits of federal power. Tell me where you stand on polar bears and I can probably guess where you come down on abortion and gun control.
In January 2007, the U.S. Fish and Wildlife Service suggested that polar bears might need protection under the Endangered Species Act. The political appointees who led the agency had one year to make the decision.
The deadline came and went. George Bush’s Interior secretary, Dirk Kempthorne, delayed and deferred, while the environmental community fumed. The world looked to the United States for guidance; Canada, home to the vast majority of the polar bears, put off its “special status” decision, waiting to see what the Americans would do. Democratic Senator Barbara Boxer, criticizing Kempthorne’s refusal to testify on the issue, said that his absence was “a slap at the American people who care about this.” Republican Senator John Warner committed conservative apostasy by agreeing with Boxer. “I think we have an obligation toward this extraordinary animal,” he said. “It’s America’s panda bear, and all Americans are in love with it.”
Two issues were at play, one regional and one global. The first was a proposed oil and gas lease in the Chukchi Sea, the icy Alaskan waters where most American polar bears live. Oil companies had their eyes on a 29-million-acre bit of ocean said to contain 15 billion barrels of oil and 77 trillion cubic feet of natural gas. Listing the polar bear as threatened would spark endless litigation. Delaying the decision by a few months could get the mineral rights sold before the pesky bears got their paws all over the paperwork.
The second issue was far more monumental: up to that point, no species had been put on the Endangered Species list as a result of climate change. Most endangered species can be saved by stopping logging in a particular forest or by scuttling a proposed dam. Resetting the thermostat of the entire Earth is trickier.
The months wore on. In the interim, the oil and gas leases in the Chukchi Sea sailed through. The delay had worked, and environmentalists were apoplectic.
Until finally, in May 2008, Kempthorne, a square-jawed Idaho Republican, announced his decision. Standing beside a giant picture of a polar bear, Kempthorne launched into his press conference. “Today I am listing the polar bear as a threatened species under the Endangered Species Act.” He even showed satellite images of shrinking sea ice and talked about taking the advice of scientific experts. What a shock! This was actually going to go the right way! This was the first time that climate change had ever been cited as a causative factor in an endangered-species listing. The U.S. government had been forced to sit up and pay attention.
But any elation that environmentalists felt was short-lived. Kempthorne continued: “While the legal standards under the ESA compel me to list the polar bear as threatened, I want to make clear that this listing will not stop global climate change or prevent any sea ice from melting … That is why I am taking administrative and regulatory action to make certain the ESA isn’t abused to make global-warming policies.” He went on to state that the listing could not be used to limit drilling in any way. In a masterstroke of bureaucratic doublespeak, he stated that polar bears needed protection … and then ruled out any action that might actually accomplish that.
Last week’s court decision clearly fits in with Unger’s predictions and the dichotomy--is the bear on the edge of extinction or in ruddy good form?--surrounding the animal. In his opinion revoking Fish and Wildlife’s decision and sending the matter back to them to rework, District Court Judge Ralph R. Beistline wrote:
“There is no question that the purpose behind the Service’s designation is admirable, for it is important to protect the polar bear, but such protection must be done correctly. In its current form, the critical habitat designation presents a disconnect between the twin goals of protecting a cherished resource and allowing for growth and much-needed economic development. The current designation went too far and was too extensive.”
Economic development was clearly the driver for those celebrating the decision. “The only real impact of the designation would have been to make life more difficult for the residents of North Slope communities, and make any kind of economic development more difficult or even impossible,” a press release quoted Sen. Lisa Murkowski, while Alaska’s governor, Sean Parnell, took the long view: “The Fish and Wildlife Service’s attempt to classify massive sections of resource-rich North Slope lands as critical habitat is the latest in a long string of examples of the federal government encroaching on our state’s rights.”
But put down your tea cup for a second: While the judge did call Fish and Wildlife’s original action “arbitrary and capricious, much of the judge’s 50-page ruling was based on “procedural difficulties,” which suggests why environmental NGOs have been mostly quiet in the wake of the ruling. “We anticipate that critical habitat for the polar bear will be reinstated shortly, because the government can easily remedy the problems Judge Beistline identified in his decision and re-issue the rule,” Kassie Siegel, the director of the Climate Law Institute who wrote the petition for listing the bear as endangered, told The Daily Caller website.
The judge did call for specific proof that all portions of the California-sized set-aside were genuine or likely denning areas. “In short,” he wrote, “the Service cannot designate a large swath of land in northern Alaska as ‘critical habitat’ based entirely on one feature that is located in approximately one percent of the entire area set aside.” Which suggests the revised protected area will shrink, just like the Arctic ice cap itself.
Where does that leave the bears? Well, opinions vary ...