Salazar limits ESA's application as he keeps polar bear rule

US Interior Secretary Ken Salazar announced on May 8 that he will retain a special rule issued in December to protect the polar bear under the Endangered Species Act. He also said that the ESA is not the right mechanism to address global climate change.

Congress granted Salazar authority under the 2009 appropriations act to revoke the rule under ESA Section 4(d) until May 10. He said that if he withdrew it, regulation would resume under an earlier, virtually identical interim rule that the Bush administration put into place when it listed the polar bear as a threatened species last year.

"Revoking the current rule would return us to an interim rule that would offer no more protections for the polar bear and would result in uncertainty and confusion about the management of the species," Salazar told reporters during a teleconference. DOI agencies will closely monitor the current rule's implementation to determine if additional measures are necessary, he added.

He said that he recognizes that melting of the ice cap is the most serious threat to the polar bear's habitat, but added that this apparent consequence of global warming needs to be addressed with a comprehensive policy instead of through the ESA. Rule 4(d) states that incidental impacts on polar bears resulting from greenhouse gas-producing and other activities outside the animals' range will not be prohibited.

"Both President Obama and I are committed to addressing climate change, and to protect the polar bear. We need to have a comprehensive climate change strategy, and are working to get legislation passed in the House and Senate," Salazar said.

Significant protection

Other DOI officials said that the polar bear will continue to have significant protection under the Marine Mammal Protection Act as well as the ESA. The animal's listing as a threatened species under the ESA provides civil and criminal penalties for killing or injuring the bears and prevents federal agencies from taking actions that are likely to jeopardize the species or adversely change its critical habitat, they indicated.

"We will continue to reach out and listen to the public and a wide range of stakeholders as we monitor the rule, and will not hesitate to take additional steps if necessary to protect this iconic species," said Thomas L. Strickland, assistant Interior secretary for fish & wildlife and parks, who also participated in the teleconference.

"We intend to monitor the ongoing degradation of habitat, cub survival and other factors. We'll also monitor potential impacts of activities such as oil and gas that might affect the polar bear's habitat. Should we see significant population impacts, this monitoring will allow us to determine which provisions to implement," added another participant, Rowan Gould, acting director of the US Fish and Wildlife Service.

He said that oil and gas producers in Alaska already were working under the Marine Mammal Protection Act when Salazar's processor, Dirk A. Kempthorne, listed the polar bear as a threatened species under the ESA early last summer. Kempthorne also said at that time that the ESA was not appropriate for addressing global climate change. He subsequently pushed for a rule modifying the requirement for government agencies to consult under the ESA which Salazar and US Transportation Secretary Gary Locke restored on Apr. 29.

Working with producers

"We've long been concerned and have worked with oil and gas producers related to their activities on the Beaufort and Chukchi Seas. We want to continue to monitor and work with the oil and gas industry to preclude any damaging activity out there," Gould said.

He noted that Obama's fiscal 2010 budget request included an increase of $7.4 million for polar bear conservation, $3.2 million of which will be invested through FWS. It also would increase by $1.5 million funding for an endangered species program specifically to reinitiate and begin new inter-agency consultations on oil and gas projects, and to prepare for a range-wide polar bear conservation plan.

The budget also would increase by $1.7 million financial support for FWS's marine mammal program to intensify work with partners to prepare, review and publish population assessments, conservation plans, and incidental take regulations, he said.

"We're going to look at the 4(d) rule to see if there are some refinements are needed to improve it. Congress gave us authority to withdraw the rule, and we decided not to. That does not mean that this is the end of the conversation. We will continue to look at this rule as it's being implemented and see if changes need to be made. This is an ongoing exercise," Strickland said.

Decision endorsed

Oil and gas industry groups applauded Salazar's action. "We welcome it because we, like the secretary, recognize that the [ESA] is not the proper mechanism for controlling our nation's carbon emissions. Instead, we need a comprehensive, integrated energy and climate strategy to address this complex, global challenge," American Petroleum Institute President Jack N. Gerard said.

Congressional Republicans, who previously expressed concern that Salazar might withdraw the interim rule, also approved of his decision. James M. Inhofe (R-Okla.), ranking minority member of the Senate Environment and Public Works Committee, said that the secretary made the right call and applied a common-sense approach. "The [ESA] is not the proper mechanism for controlling our carbon emissions. The same is also true of the Clean Air Act or any other federal law," he said.

Doc Hastings (R-Wash.), ranking minority member of the House Natural Resources Committee, said that Salazar's action assures that the ESA will not be used to regulate GHG emissions from activities outside the polar bear's range. "This decision will help protect crucial projects needed to stimulate our economy from becoming the target of frivolous lawsuits by environmental groups designed to stop economic development in our country," he said.

Sen. Barbara Boxer (D-Calif.), who chairs the Senate Environment and Public Works Committee, disapproved. "I disagree with the [DOI's] decision to limit the tools we have under the [ESA] to save the polar bear from extinction. Monitoring the situation will not tell us more than we know now: that the polar bear is threatened and we need to act," she said.

Environmental organizations have been divided over whether to use the ESA to address global climate change, Salazar observed during the teleconference. "There may be litigation over this issue. We'll defend our stand," he said.

Contact Nick Snow at nicks@pennwell.com

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