US met obligations for polar bear protection, judge rules

Kim MurphyLA Times

A federal judge ruled Monday that the government did not breach its obligations under the Endangered Species Act by not considering greenhouse gas emissions in efforts to protect polar bears.

U.S. District Judge Emmet G. Sullivan also concluded that federal officials were within their authority to allow "incidental" harm to polar bears that might occur as a result of oil and gas activities in the Arctic, provided that those activities already are authorized under the Marine Mammal Protection Act. The judge did find, however, that the government erred in not undertaking an environmental review before it issued its special rule on polar bears in 2008 -- a shortcoming so serious that he sent the matter back for a new review.

The suit was filed by advocates for the polar bears, which are listed as "threatened" under the Endangered Species Act.

Warmer temperatures are shrinking the bears' primary habitat on the sea ice off Alaska and elsewhere in the Arctic, making them a focal point in the debate over greenhouse gas emissions. Conservationists argue that the bears' survival cannot be ensured unless their biggest threat -- global warming -- is attacked, perhaps thousands of miles away from where the bears live.

A variety of oil industry and business groups, along with the governor of Alaska, joined the government in opposing the suit filed by four conservation organizations. They argue that it is impossible to draw a scientific link between, say, a new coal power plant in Arkansas and the shrinking of the ice in Alaska.

The court in its ruling Monday in Washington did not address the merits of either argument but said the government had met its obligations under the Endangered Species Act. The judge said the act gives federal regulators broad discretion to decide what kinds of harm to allow to occur to species that are merely "threatened," rather than "endangered."

"The question at the heart of this litigation -- whether ESA is an effective or appropriate tool to address the threat of climate change -- is not a question that this court can decide based upon its own independent assessment, particularly in the abstract," Sullivan wrote.

The judge's ruling changes the status quo very little; the special rule was struck down but an interim rule that is back in effect is not much different.

The big impact, conservationists say, is that the government will now have to consider the environmental effects of allowing exemptions for not only greenhouse gases but, possibly, pesticides, mercury, PCBs and other pollutants that make their way into the Arctic food chain.

"The real-world impact is the full scope of protections for the polar bear is back in the Obama administration's court," said Kassie Siegel of the Center for Biological Diversity. "They have to do the review, they have to reissue the rule and they're getting a second chance to do things right by the polar bear."

Alaska Congressman Don Young and the administration of Gov. Sean Parnell both welcomed the ruling.

"The lawsuits to list the polar bear as endangered were never about protecting polar bears," Young said in a statement. "Instead, they were nothing more than a back door approach to regulate CO2 and stop responsible development from moving forward."

Los Angeles Times