Polar Opposites: State of Alaska, Hunting and Environmental Groups Challenge Polar Bear Listing

In the month since the U.S. Department of Interior and U.S. Fish and Wildlife Service (“USFWS”) listed the polar bear under the Endangered Species Act (“ESA”), several groups have announced their intent to challenge the decision, and one has already filed suit.[1]

The State of Alaska and Safari Club International are one side of the debate. The State of Alaska has announced that it will challenge the decision on the grounds that it is not supported by sufficient evidence. Safari Club sued the USFWS, challenging the decision because it prohibits importation of trophy polar bears into the United States.

On the other side of the debate, the Center for Biological Diversity (“CBD”), an environmental advocacy group, amended its complaint in an existing lawsuit in order to challenge the ESA Section 4(d) rule issued with the listing decision.[2] Several environmental groups have also notified Interior of their intent to sue because they believe the listing does not provide enough protection for the bear. The CBD will ask the courts to require more protections for the species, and to require federal agencies to re-examine previously authorized oil and gas industry activities in polar bear habitat. Because Interior found that critical habitat is “not determinable” for the species, environmental groups may also sue to force its designation. Before the listing was announced, environmental groups challenged incidental take rules for the polar bear promulgated under the Marine Mammal Protection Act (“MMPA”),[3] and environmental and tribal groups challenged oil leases in polar bear habitat approved by the Mineral Management Service (“MMS”).[4]

More lawsuits may be filed in the coming weeks to challenge the listing and activities in polar bear habitat, illustrating that the decision was not a definitive “win” for any side of the debate.

Background

Under the ESA, a “threatened” species is one likely to become endangered – one in danger of extinction – in the foreseeable future.[5] Last month, the USFWS determined that the polar bear is likely to become endangered within the next 45 years.[6] In its final rule, the USFWS found that, “based on the best available scientific and commercial information, polar bear habitat – principally sea ice – is declining throughout the species’ range, that this decline is expected to continue for the foreseeable future, and that this loss threatens the species throughout all of its range.” [7] The polar bear is not the first species to be listed based on climate change effects,[8] but the listing decision is the first rule in which the Service explicitly acknowledged: (1) the potential for extinction of a vertebrate species due largely to climate change effects; (2) that atmospheric concentration of carbon dioxide has increased in a “dramatic and unprecedented” manner, particularly in the last 20 years “due to global increases in [greenhouse gas (“GHG”)] emissions and land use changes”; and (3) that “existing regulatory mechanisms to address anthropogenic causes of climate change … are not expected to be effective in counteracting the worldwide growth of GHG emissions within the foreseeable future.”[9]While the listing itself is viewed as a win within the environmental community, elements of the rule and regulations and guidance issued concurrently significantly narrow its effect. These led to the proliferation of lawsuits.

Interior’s Bases for Listing the Polar Bear

Polar bears are the largest living bear species, and live in Canada, Russia, Greenland, and the Chukchi and Beaufort seas west and north of Alaska.[10] Between 20,000 and 25,000 polar bears are estimated to exist worldwide, in 19 “relatively discrete populations.” The species depends upon sea ice to hunt and feed, as habitat for breeding and denning, and for long distance movement. They also require sufficient snow accumulation for den construction and maintenance.[11] The USFWS found that “[t]he best available scientific evidence unequivocally” establishes that atmospheric CO2 levels exceed pre-industrial levels,” and that, “[s]ince the start of the industrial era, the effect of increased GHG concentrations in the atmosphere has been widespread warming of the climate, with disproportionate warming in large areas of the Arctic …” The Service explained that “a net result of this warming is a loss of sea ice, with notable reductions in Arctic sea ice." [12]

Seals are polar bears’ primary food source. However, bears sometimes eat walrus, narwhal, beluga whales, and, when confined to land for long periods of time, human garbage, plants, and other terrestrial food.[13] Polar bears’ primary food sources may also be threatened by climate change,[14] and some are the subject of listing petitions themselves.[15] Although animals can adapt to changing environmental conditions, the USFWS determined that the polar bear’s physiological and physical characteristics constrain its ability to adapt behaviorally “to rapid and extensive alteration” sea-ice habitat.[16]

Under the statutory factors for listing, the USFWS determined that the polar bear is threatened by ongoing and projected changes in sea ice habitat.[17] But it also determined that “there are no known regulatory mechanisms in place at the national or international level that directly and effectively address the primary threat to polar bears – the rangewide loss of sea ice habitat within the foreseeable future.” The Service acknowledged that “some existing regulatory mechanisms … address anthropogenic causes of climate change,” but found that “these mechanisms are not expected to be effective in counteracting the worldwide growth of GHG emissions within the foreseeable future.”[18] Throughout the listing decision, the USFWS emphasized that oil and gas exploration, development and production in polar bear habitat do not threaten the bear, due to the following: (1) current and future mitigation; (2) historical information on the level of these activities in polar bear habitat; “(3) the lack of direct quantifiable impacts to polar bear habitat from these activities noted to date in Alaska; (4) the current availability of suitable alternative habitat; and (5) the limited and localized nature of the development activities, or possible events, such as oil spills.”[19]

Interior’s Section 4(d) Rule for the Polar Bear

Listing under the ESA triggers significant regulatory restrictions. ESA Section 9 prohibits a “take” of listed species.[20] “Take” is defined broadly to mean (among other things) harassing, harming, injuring, or killing listed species.[21] Under Section 4(d), however, the Service may promulgate a special rule tailored to conservation needs of threatened species. Absent a Section 4(d) rule, the ESA’s Section 9 prohibitions apply to species listed by the USFWS.[22] Concurrent with listing, Interior issued a Section 4(d) final rule setting forth prohibitions and exceptions applicable to the species.[23] In it, the USFWS adopted the existing regulatory requirements under the Convention on International Trade in Endangered Species of Wild Fauna and Flora and the MMPA as the protective measures for polar bears.[24] Accordingly, if incidental take has been authorized under the MMPA, the USFWS will not require additional authorization under the ESA.[25] Further, subsistence harvest of bears, production, interstate sale, and export of native handicrafts by Alaska Natives may continue.[26]

Federal Actions Undertaken Outside of Alaska Will Not Trigger Consultation Requirements With Respect to the Polar Bear Under Secretary Kempthorne

Prior to the decision, many listing opponents argued that the listing would open the floodgates, enabling challenges to a broad spectrum of activities that emit GHGs, ranging from oil and gas exploration in Alaska to coalbed methane development in Wyoming to permitting coal-fired power plants in New Jersey. Secretary Kempthorne stressed that this will not happen under Interior’s interpretation of the ESA, and repeated President Bush’s April 2008 remarks that “[t]he Clean Air Act, the [ESA] and the National Environmental Policy Act were never meant to regulate global climate change.”[27] He further stated that the listing:

should not open the door to use the ESA to regulate [GHG] emissions from automobiles, power plants, and other sources. That would be a wholly inappropriate use of the [ESA]. ESA is not the right tool to set U.S. climate policy. [The Act] neither allows nor requires the … Service to make such interventions. The Service must articulate a causal connection between the effects of any action and loss of a polar bear. As the U.S. Geological Survey has advised me, the best scientific data available do not demonstrate significant impacts on individual polar bears from specific power plants, resource projects, government permits, or other indirect effects of activities in the lower 48 states that are potentially reviewable under the ‘consultation’ requirements of the ESA.[28]

Concurrent with the listing decision, the U.S. Geological Survey and USFWS issued guidance addressing “the challenges of linking carbon emissions, atmospheric [GHG] concentrations, global warming, and consequential impacts” and “expectations for consultations on actions that would emit [GHGs].” The guidance memoranda echo Secretary Kempthorne’s and President Bush’s remarks, as well as conclusions set forth in the Section 4(d) rule and listing decision – that “current science and models cannot link individual actions that contribute to atmospheric carbon levels to specific responses of species, including polar bears.”[29] It is likely that Interior will use these guidance documents to counter arguments anticipated from environmental groups in current or future litigation.

Under Section 7(a)(2) of the ESA, federal agencies must ensure that “any action authorized, funded, or carried out by such agency … is not likely to jeopardize the continued existence of any endangered … or threatened species or result in the destruction or adverse modification of [designated critical] habitat” by consulting with the appropriate Service.[30] USFWS Director Hall addressed outstanding consultation questions directly in his guidance, stating that “the Service does not anticipate that the mere fact that a Federal agency authorizes a project that is likely to emit GHG[s] will require the initiation of [S]ection 7 consultation.”[31] Similarly, effects from “consumption of petroleum products refined from crude oil pumped from a particular drilling site” will not be subject to consultation.[32] Hall advised that actions related to oil and gas development, for example, will likely be subject to consultation requirements if they: (1) directly affect polar bears adversely (i.e., potentially, drilling, vehicular traffic, and on-site activities associated with oil and gas development); and/or (2) indirectly affect polar bears adversely (i.e., oil spills or other contaminant releases, if reasonably certain to occur). [33]

In the listing decision, the USFWS provided examples of federal actions that will likely be subject to consultation as a result of the polar bear listing. These include actions in Alaska where the species occurs, such as: “refuge operations and research permits; U.S. Army Corps of Engineers and Environmental Protection Agency permitting actions under the Clean Water Act and Clean Air Act; Bureau of Land Management land use planning and management activities including onshore oil and gas leasing activities; Minerals Management Service [(“MMS”)] administration of offshore oil and gas leasing activities; and Denali Commission funding of fueling and power generation projects.”[34] It is unlikely that the Services will consult on effects to the polar bear from agency actions that occur outside of certain areas in Alaska (i.e., where the species occurs). Absent data establishing a causal connection between an activity’s GHG emissions and impacts to listed species or critical habitat, the Services will not require consultation. Similarly, it is unlikely that the USFWS will find that a taking has occurred short of a direct or significant indirect effect obviously caused by a certain activity (i.e, an oil spill).

Existing Litigation Abounds, With More to Come

The Service’s position on how to apply ESA requirements in light of the polar bear listing will not be the end of the story. Immediately following the listing decision, the CBD amended its complaint in an existing lawsuit regarding the listing in order to challenge the Section 4(d) rule promulgated by the USFWS with the listing decision.[35] The Section 4(d) rule was finalized and made effective without public notice or comment, and the Service did not complete an environmental assessment or impact statement regarding the rule. The CBD therefore argues that it violates NEPA and the Administrative Procedure Act (“APA”).[36]

On May 23, 2008, Safari Club sued the USFWS over the listing decision.[37] Before the USFWS listed the bear, hunters could legally import polar bear trophies from approved populations in Canada under the MMPA.[38] In its complaint, the hunting group challenges the USFWS’ determination that authorization for the import of sport-hunted trophy bears is no longer available.[39]

Less than a week after Interior announced its listing decision, the State of Alaska announced its intent to file suit in U.S. District Court for the District of Columbia to challenge the listing decision under the APA.[40] The state “maintains that there is insufficient evidence to support a listing of the polar bear as threatened for any reason at this time.”[41] Because it believes that polar bear populations are healthy and well-managed, the state will allege that Secretary Kempthorne failed to make his decision based solely on the best available scientific and commercial information, as required by the ESA.[42]

Environmental groups have also notified Interior of their intent to sue to require the USFWS and MMS to re-examine previously authorized offshore oil and gas industry activities, including lease sales, exploration and development plans, seismic surveys, and associated take authorizations under the MMPA; and to require more protections for the bear.[43] On June 9, 2008, the CBD notified Secretary Kempthorne of its intent to sue under the ESA for the USFWS’ alleged “failure to protect polar bears from oil development in their habitat in the Beaufort and Chukchi seas off Alaska."[44] The environmental group alleges that, because the ESA “requires federal agencies to examine all aspects of a federally approved activity’s impacts on the polar bear, including ‘actions directly or indirectly causing modifications to the land, water, or air,’ the legally required review of offshore oil impacts on polar bears must also include an analysis of, and measures to reduce, the impacts of [GHG] emissions from those activities on the polar bear.”[45]

The fact of the listing and its underlying rationale may also be raised in non-ESA litigation. Plaintiffs have brought lawsuits under common law theories and statutes other than the ESA alleging, for example, nuisance and trespass based on climate change impacts. To date, at least three federal district courts have dismissed such suits on the ground that they presented political questions over which the courts lack jurisdiction.[46] In another pending lawsuit, a coastal native village in Alaska, Kivalina, alleges that twenty oil, coal, and electric utility companies are responsible for a substantial portion of GHGs in the atmosphere, which have caused global warming and are destroying the village.[47] Kivalina makes the precise argument, albeit outside of the ESA, that the Section 4(d) rule, USGS and USFWS guidance appear to be designed to refute – namely, that injuries related to the particular impacts of climate change in Alaska are due to the emission of GHGs elsewhere.[48]

Conclusion

If Congress passes legislation capping GHG emissions, then compliance with that law by the action agency could potentially simplify the consultation process.[49] Until then, litigation will likely produce piecemeal decisionmaking related to the effects of GHG emissions on listed species. With respect to consultation, emission of GHGs alone will not trigger consultation requirements, unless Interior’s current interpretation is invalidated. Climate change will, however, play a role in some consultations. The Services have been, and may continue to be, required to evaluate climate change effects as part of the environmental baseline of “past and present impacts of all Federal, State, or private actions and other human activities in the action area.”[50]

For additional information on this decision, the ESA or climate change issues, please contact Jessica Ferrell or any other member of Marten Law Group’s Endangered Species and Natural Resources or Climate Change and Sustainability practice groups.