Kempthorne says polar bear is threatened, not endangered

Nick Snow
Washington Editor

WASHINGTON, DC, May 19 -- The polar bear will be listed as a threatened species under the federal Endangered Species Act (ESA), announced US Interior Secretary Dirk A. Kempthorne on May 14.

He said his decision follows US Fish and Wildlife Service Director Dale A. Hall's recommendation and is based on the best available science, which shows that loss of sea ice, and not oil and gas development or native populations' subsistence activities, threatens and likely will continue to threaten polar bear habitat.

"Because polar bears are vulnerable to this loss of habitat, they are, in my judgment, likely to become endangered in the foreseeable future—in this case, 45 years," the secretary said during a press conference, which included Hall and US Geological Survey Director Mark Myers.

He noted that polar bears already are protected under the Marine Mammal Protection Act, which has provisions that are more stringent than those in the ESA. "The oil and gas industry has been operating in the Arctic for decades in compliance with these stricter provisions. The Fish and Wildlife Service says no polar bears have been killed due to encounters with oil and gas operations," he said.

He also said listing the polar bear as threatened should not open the door to using the ESA to regulate greenhouse gas emissions from automobiles, power plants, or other sources. "That would be wholly inappropriate. The ESA is not the right tool to set US climate policy," he maintained.

Alaskan officials concerned
The announcement produced expressions of concern from Alaskan officials. US Sen. Ted Stevens (R-Alas.) said he was disappointed and disturbed because scientists have observed there now are three times as many polar bears in the Arctic as there were in the 1970s. "Never before has a species been listed as endangered or threatened while occupying its entire geographic range," he said.

He said DOI's action opens the door for many other Arctic species to be listed, which would hamper Alaska's ability to tap its natural resources. "Reinterpreting the ESA in this way is an unequivocal victory for extreme environmentalists who want to block all development in our state," he declared.

Canada, which has the world's largest polar bear population, has chosen not to list the animal as threatened or endangered but as a species of "special concern," according to US Sen. Lisa Murkowski (R-Alas.). She suggested that FWS and DOI erred in their decision because it is too soon to determine the impacts of the loss of sea ice on the present polar bear population.

"I am concerned that a threatened listing could have serious ramifications for Alaska and the development of all of our natural resources. I certainly don't believe a threatened listing should affect the construction of an Alaskan natural gas pipeline, or of any other oil and gas projects, since there is zero evidence that any such project has harmed bear populations in the least. Clearly we want to promote the use of clean-burning natural gas to reduce carbon emissions," Murkowski said.

Alaska Gov. Sarah Palin said that while the state was disappointed with the decision, it will assist FWS to ensure that polar bear populations remain viable for decades to come. She also said that she hopes federal actions do not threaten the North Slope's oil and gas industry, which she described as viable, productive, and environmentally responsible.

Congressional reactions
Kempthorne's decision displeased leaders of the US Senate Environmental and Public Works Committee, but for different reasons. Chairman Barbara Boxer (D-Calif.) said that while the listing was welcome news and long overdue, she was deeply concerned that the administration's plan will deny the polar bear some key protections under the ESA.

"The plight of the polar bear is a stark reminder that the planet is already experiencing the ravages of global warming. Today's announcement underscores how important it is for the Senate to pass national legislation to cut global warming pollution and avert the dangerous effects of climate change," she said.

James M. Inhofe (R-Okla.), the committee's ranking minority, said that the decision apparently was based more on politics than science. He said that FWS estimates that there now are 20,000-25,000 polar bears, up substantially from levels of 5,000-10,000 during 1950-60. "Credit should be given to protection already provided the polar bear by the Marine Mammal Protection Act, the several international conservation treaties, including the 1973 Agreement on the Conservation of Polar Bears and the US-Russia Polar Bear Conservation and Management Act of 2006, as well as conservation education and outreach agreements with native peoples," he suggested.

"The regulatory tools of the ESA function best when at-risk species are faced with local, tangible threats. Greenhouse gas emissions are not local. The implications of today's decision, therefore, will undoubtedly lead to a drastic increase in litigation and eager lawyers ready to use this listing to do exactly what they have intended to do all along: shut down energy production," Inhofe warned.

US Rep. Edward J. Markey (D-Mass.), who chairs the House Select Committee on Energy Independence and Global Warming, said the Bush administration finally acknowledged that the polar bear needs to be listed under the ESA after years of delay. "But the administration also has announced a rule aimed at allowing oil and gas drilling in the Arctic to continue unchecked even in the face of the polar bear's threatened extinction. Essentially, the administration is giving a gift to Big Oil and short shrift to the polar bear," he indicated.

Kempthorne's directives
Markey was referring to several specific actions Kempthorne also announced that are designed to assure that the ESA is not used to try and regulate global climate change. First, said the secretary, he ordered FWS to propose a 4(d) rule stating that an activity is permissible under the ESA if it is permissible under the Marine Mammal Protection Act's stricter standards.

Second, he told Hall to direct his staff that the best scientific information available cannot make a casual connection between harm to species or their habitats and greenhouse gas emissions from a specific facility, resource development project or government action. He also said that DOI will issue a solicitor's opinion clarifying these points.

"The ESA regulatory language needs to be clarified. We will propose common sense modifications to the existing regulations to provide greater certainty that this listing will not set back-door climate policy outside our normal system of political accountability," the secretary said.

He said that when he was in the US Senate, he worked with Sens. Harry M. Reid (D-Nev.), Max Baucus (D-Mont.), and the late John H. Chafee (R-RI) to reform the ESA. "I lived with the consequences of ESA decisions as governor of Idaho. As [Interior] secretary, I have now experienced the reality that the current ESA is among the most inflexible laws Congress has passed. It prevents me, as secretary, from taking into account economic conditions and adverse consequences in making listing decisions," Kempthorne said.

He said he met last week with his Canadian counterpart, Environment Minister John Baird, and that the two officials signed a memorandum of understanding to conserve and manage the two countries' polar bear populations. DOI also will continue to monitor polar bear populations and trends, study polar bear feeding ecology, and work with local and borough governments in Alaska to manager polar bear populations, he said.

Contact Nick Snow at nicks@pennwell.com.

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