A long simmering dispute about how much the government should protect polar bears has turned into a battleground for environmentalists and some of the country's most powerful business organizations over the larger question of global warming. Both sides are concerned about the effect that a decision on the bear's status might have on the regulation of greenhouse gas emissions, which scientists say is driving climate change.
U.S. District Court Judge Emmet Sullivan sent the controversial listing decision back to the Obama administration in October, asking officials to clarify the language the agency used when it determined that polar bears aren’t “endangered” under federal law. The deadline for the official response was this week.
Environmental groups normally friendly to the Obama administration have sued Interior to list the bear as endangered, saying the sea ice the bears need for hunting and breeding is being rapidly depleted by warming temperatures.
If the Obama administration listed the polar bear as endangered, it would have to move against factors that endanger it -- large emitters of greenhouse gases. That possibility worries industries dependent on fossil fuels, such as major manufacturers and utilities.
On Wednesday, the Interior Department filed arguments in federal court defending its decision to classify polar bears as "threatened" rather than "endangered" despite widespread shrinkage of the sea ice that forms the bears' natural habitat.
"The Service explained how its biologists had concluded in 2008 that the polar bear was not facing sudden and catastrophic threats [and] was still a widespread species that had not been restricted to a critically small range or critically low numbers," the agency said in a statement. (Right: polar bear distribution)
What makes the issue so sensitive is that, if polar bears received the stricter endangered classification, the Obama administration would be pressured to attack the problem at its source: the petroleum, coal and manufacturing companies that emit the greenhouse gases scientists say are a major factor in climate change.
"There is a pronounced push-back from industry because they rightly see that they will have to modify or mitigate their activities to comply with the laws," said Andrew Wetzler, director of the Land and Wildlife program at the Natural Resources Defense Council, one of the environmental groups suing to change the polar bear's status.
In early 2009, the Obama administration pledged to revisit several controversial environmental decisions made under George W. Bush — including the polar bear's status. But months later, Obama's Interior Department ratified the bears' "threatened" classification. (Right: sea ice extent)
Listing the polar bear as “endangered” as a result of global warming could open the door to using the Endangered Species Act to regulate greenhouse gases, an outcome the Obama administration has opposed.
Although the Obama administration has moved steadily to reduce greenhouse gas emissions — with a tough reelection campaign ahead in 2012 and a still-wobbly economy — the White House has been trying not to provoke policy battles with the wary business community.
The issue is even more sensitive because tougher emissions rules would be likely to raise prices and could cost jobs.
Scientific data point to a mounting threat to the polar bear, the largest carnivore on land. Polar bears depend on sea ice for hunting, breeding and denning. Typically, polar bears hunt for ringed seals on the sea ice, catching them when they come up for air. However, since the ice is melting earlier and earlier in the year (sea ice melting graph), polar bears are shifting there habitat to land and water, and may be missing out on hunting opportunities
Higher temperatures have brought about a rapid decline in summer sea ice, robbing bears of their hunting platforms. The loss of sea ice essentially threatens bears with starvation.
Despite the scientific evidence pointing to the probable extinction of polar bears in the wild, the Obama administration reaffirmed Wednesday its decision to designate polar bears as a "threatened," not "endangered," species, in defiance of the wishes of conservationists who say the bears are in danger of extinction because their arctic hunting grounds are melting.
The International Union for Conservation of Nature considers the species "decreasing." A recent paper in the journal Ecology concluded there was a "high probability" that polar bears would disappear in the Beaufort Sea, which is off Alaska, by the end of the century.
The Interior Department does not dispute the science, which it uses as the basis of its "threatened" listing. But the listing contains the so-called "4d" exemption, excluding greenhouse gases from being regulated as a threat to a species.
Except for the "4d" exemption, threatened species receive most of the same regulatory protections as those listed under the Endangered Species Act, including a requirement that federal agencies refrain from actions that might jeopardize their existence or destroy or harm their habitat.
Industry groups, including the American Petroleum Institute, the U.S. Chamber of Commerce and the National Mining Assn., are fighting to keep the exemption and to keep the polar bear from being classified as endangered.
Industry leaders said they would be watching the polar bear decision closely as a signal of the administration’s commitment to compromise with them.
"It's based upon the position that the science doesn't exist to draw a link between a particular activity, industrial or otherwise, and an identifiable incremental effect on sea ice," said Richard Ranger, senior policy advisor for API.
"Given the inability to establish a causal relationship between, say, expansion of the port of Los Angeles to sea-ice loss, why should U.S. industries be subject to additional burdens when Chinese industries are not subject to anything?" he said.
A change from threatened to endangered status “would have profound consequences,” said Richard Ranger, senior policy advisor for the American Petroleum Institute, a lead litigant on the industry side. “It would very much get our attention.”
But lawyers for the environmental groups would like to win endangered status for the polar bear precisely because the listing would eliminate the 4d exemption.
Kassie Siegel, director of the Climate Law Institute at the Center for Biological Diversity, called the administration's decision "a huge disappointment." Arctic ice, the bears' hunting ground, is melting and bears are starving to death, she said.
"It's a wasted opportunity to do the right thing," Siegel said. "The government's own studies show about an 80 percent chance of extinction of two-thirds of the world's polar bears in the next 40 years."
Siegel, the lead attorney in the environmental groups' petition to change the bear's status, denounced the government's action and said her group would mount a new legal challenge.
"The new decision from the Obama administration amounts to nothing more than lipstick on a pig," she said. "It puts a gloss on a horribly flawed Bush-era decision that is anti-science and serves to greatly undermine the protection of not just the polar bear but all of America's imperiled wildlife."
Still, some independent legal and scientific experts say the Endangered Species Act may not be an appropriate tool to deal with the impact of climate change, designed, as it was, to regulate humans encroaching on forests or polluting rivers.
"It just screams for some kind of response from Congress and not the courts," said J.B. Ruhl, law professor at Florida State University College of Law and a specialist in endangered species protection. "But in Congress you have a stalemate."
Los Angeles Times, "Polar bear status pits environmentalists vs. administration", accessed December 23, 2010
Los Angeles Times, "Obama decision on polar bear status closely watched", accessed December 23, 2010
Politico, "W.H.: Polar bears not 'endangered'", accessed December 23, 2010
Washington Post, "Polar bears' 'threatened' designation irks activists", accessed December 23, 2010