A U.S. judge in Washington, D.C., is mulling whether to order a government agency to declare polar bears an endangered species.
In a case that began in federal court in San Francisco, three environmental groups say the U.S. Interior Department should change the bears’ status from “threatened” to “endangered” because of the dire situation created by melting Arctic sea ice.
The planet’s 20,000 to 25,000 polar bears hunt seals, their main food, from sea ice.
“Polar bears are endangered because of global warming,” said Kassie Siegel, a lawyer with the Center for Biological Diversity. “They are starving and dying right now as the Arctic ice melts.”
“The endangered listing would acknowledge the urgency of the situation and give the bears the full protection of the law,” Siegel said Thursday from the center’s office in Joshua Tree in San Bernardino County.
U.S. District Judge Emmet Sullivan is scheduled to hear arguments in his Washington, D.C., courtroom in February on the environmental groups’ bid to have the listing changed.
An endangered listing could open the door to measures aimed at reducing global warming, although any such actions would be the subject of additional arguments and court hearings.
The state of Alaska and several hunting and business groups maintain, meanwhile, that the polar bear doesn’t need even a “threatened” listing and are asking Sullivan to remove it.
And the U.S. Fish and Wildlife Service claims the threatened status is correct and wants the judge to keep it in place.
“The service arrived at the 2008 decision to list the polar bear as ‘threatened’ following careful analysis of the best scientific information, as required by the Endangered Species Act,” Acting FWS Director Rowan Gould said Thursday.
“We…are confident it was and is the appropriate status,” Gould said.
The wildlife service is part of the Interior Department and is the agency that decides on species listings.
The case grew out of a lawsuit filed in federal court in San Francisco in 2005 by the Center for Biological Diversity, Greenpeace and the Natural Resources Defense Council.
That lawsuit, assigned to U.S. District Judge Claudia Wilken of Oakland, sought to have the wildlife service give the polar bear some kind of protective listing. After Wilken ordered the agency to take action, it designated the polar bear as threatened in May 2008.
In a second lawsuit filed in Wilken’s court in 2008, the three groups sought to have the status changed to endangered, arguing that the situation had worsened because of the acceleration of ice melting.
The case was transferred to Sullivan’s court in Washington, D.C., to be consolidated with four other lawsuits in which Alaska and the hunting and business groups challenged the “threatened” listing.
Threatened and endangered listings both result in a ban on “taking,” defined as killing, harming or harassing, the animals.
But in cases of threatened species, the Endangered Species Act allows the Interior secretary to make exceptions to the “takings” ban.
During the Bush administration, Interior Secretary Dirk Kempthorne issued an exception exempting any harmful actions that take place outside the bear’s Arctic habitat.
Siegel said the rule has the effect of preventing any polar-bear-protecting regulations that would limit creation of greenhouse gases or toxic chemicals, such as mercury, within the lower 48 states.
In the Obama administration, Interior Secretary Kenneth Salazar chose to keep the rule, saying he believes the department should “wisely implement the current rule” while monitoring its effectiveness.
Siegel said that if the polar bears’ status is upgraded to endangered, the exemption would automatically be eliminated.
If Sullivan leaves the “threatened” listing in place, the environmental groups will argue at another hearing in April that the exemption violates the Endangered Species Act.
“There’s no reason to exempt greenhouse gases,” Siegel said.
The groups wrote in a brief, “The single overwhelming factor driving polar bears towards extinction is the decline of Arctic sea ice brought by global warming.”
The rule “has thus reduced protections for the polar bear from the very threat that most imperils the species,” the groups argued.
Several of the groups that filed lawsuits challenging any listing for polar bears have argued that polar-bear-related regulation of greenhouse gases would unfairly hurt their businesses.
One such lawsuit was filed by the California Cattlemen’s Association and the Congress of Racial Equality, known as CORE.
The association told Sullivan in a filing that polar bear protection increases ranchers’ chances of being sued by citizens “who claim that the production of animal protein significantly contributes to climate change.”
CORE said in the same filing that minority-owned businesses that emit greenhouse gases would be injured by “regulatory burdens, additional costs and increased liability.”
The Interior Department contends that regulation of greenhouse gases would not be in the purview of the Endangered Species Act even if the exemption in question were eliminated.
In a statement on its website, the department says, “It is currently not possible to directly link the emission of greenhouse gases from a specific power plant, etc. to effects on specific bears or bear populations.”
But the statement acknowledges, “As a more general matter, the department recognizes that climate change impacts associated with global warming are impacting the polar bear and other species.”
Julia Cheever, Bay City News
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