Friday, October 21, 2011
On Monday, Judge Emmett Sullivan, a federal district court judge for the District of Columbia, issued two decisions in the ongoing polar bear wars. Those wars started in 2005, when several environmental groups petitioned the Fish and Wildlife Service to list the polar bear as a threatened species. The groups then sued to compel action on the petition, ultimately leading to a “threatened” designation. In subsequent cases, the environmental plaintiffs sued to compel the designation of critical habitat for the species (they won) and to challenge FWS’s decision to list the species as threatened rather than endangered (they lost, but so did other plaintiffs who challenged the decision to list the polar bear at all.
One of this week’s two decisions involved FWS’s so-called 4(d) rule, which established the extent to which ESA section 9 will protect the polar bear (the other, which this post won’t really discuss, upheld limitations on imports of polar bears hunted as trophies). Section 9 prohibits “take” of species, but the ESA itself mandates those protections only for endangered species. For threatened species, FWS and the National Marine Fisheries Service have the option of extending section 9 protections. Under a long-established rule (codified at 50 CFR § 17.31), the agencies generally do so. But the FWS treated the polar bear as a special case. It extended section 9 coverage only to activities in polar bear habitat, and specifically excluded activities outside polar bear habitat even if those activities would adversely impact polar bears. That was a significant exclusion. The primary threat to the species is the loss of its sea ice habitat. That ice is disappearing because of climate change, and climate change is occurring because of the greenhouse gas emissions from all over the world. The 4(d) rule therefore excluded from section 9 coverage most of the activities threatening the bear. Not surprisingly, the environmental groups, who sought the polar bear listing largely to engage the ESA in the fight against global warming, sued.
For the most part, the environmental groups lost. FWS argued that because the greenhouse gas emissions of individual sources mix together in the atmosphere, with each potentially regulated activity contributing a small share of the overall problem, establishing that any particular activity had taken individual bears would be impossible. The D.C. district court found that conclusion to be a reasonable exercise of the agency’s discretion. The plaintiffs did still win a NEPA claim; the FWS had done no NEPA compliance for the rule, arguing that it was exempt from coverage, and the court disagreed. It therefore remanded the rule pending compliance with NEPA. But that appears to be a temporary setback for the administration, which an environmental assessment and finding of no significant impact or, at most, an EIS would likely fix.
Some thorny legal issues remain, however. The take prohibition is just one of three ways that the ESA provides protection to listed species. Under ESA section 7, federal agencies also are prohibited from taking actions likely to jeopardize those species continued existence or to destroy or adversely modify their critical habitat. In an internal memorandum, the FWS has opined that these provisions are equally inapplicable to the greenhouse gas emissions that threaten the polar bear, but, as I’ve argued in more detail here, the latter claim is difficult to reconcile with statutory text. Even if the changes attributable to individual federal projects are highly incremental, and even if the increments are impossible to quantify, we know perfectly well that each individual federal project that adds greenhouse gas emissions is contributing to the destruction of polar bear habitat. It is modifying critical habitat, and the modification is adverse.
The whole dispute has placed the FWS (and the National Marine Fisheries Service, for many of the species under its jurisdiction are threatened by climate change) in a bind. On the one hand, they can acknowledge that climate change is one of the largest, if not the largest, threats to listed species habitat, and can try to regulate the federal activities that generate emissions. In the current political climate, the consequences aren’t hard to imagine. The venom (see here; start at 4:20) currently directed at EPA would seem like polite parlor conversation. Alternatively, the agencies could continue to assert that the ESA’s core regulatory provisions do nothing to address the single largest threat to many listed species, even when we know perfectly well that many potentially regulated activities are exacerbating that threat. That position seems as absurd as the alternative seems impossible.
So what’s the answer? In the coming years, the FWS and NMFS may try to come up with alternative approaches, or may just adhere to their current position that climate change is a severe threat for which the ESA provides hardly any answer. Academics have begun to try, and surely will continue to do so. Hopefully the agencies will find their way to an effective and workable approach. But it is very difficult to imagine a scenario in which FWS and NMFS, acting alone, successfully turn the ESA into a meaningful source of GHG emissions regulation. The statutory basis for such an effort isn’t hard to find, but the political leverage seems unattainable.
Perhaps two alternatives offer more promise. One would be a joint climate change regulatory initiative cutting across the federal environmental agencies. I haven’t thought through how exactly this would work (this is a blog post, after all), but it’s striking how many different statutes and programs climate change implicates. NEPA, the Clean Water Act (because of ocean acidification, among other reasons), the ESA, and of course the Clean Air Act all contain provisions arguably triggered by climate change, yet all are implemented by agencies (or offices within agencies) that are understandably somewhat worried about addressing the problem on their own. Perhaps there’s some way that the agencies or offices involved in administering those various statutes and programs could work together to develop standardized permitting thresholds or mitigation programs. Of course, given current politics, such a multi-agency, high-profile effort would be a fat target, a sort of administrative Hindenburg awaiting the inevitable rhetorical spark. But when some sanity returns, it might ameliorate some of the dysfunctions likely to arise from multiple independent efforts to address climate change under a disparate set of regulatory programs (or, more realistically, to avoid doing so).
The other possibility, which seems painfully obvious but still bears mentioning, is to replace or supplement the existing statutory structure by passing comprehensive climate change legislation. As long as we don’t have it, we’re really just debating among potential second-best options.