Polar Bears, Secretary Salazar and Climate Change

Polar bears cannot catch a break.  The Bush Administration reluctantly declared the bear a threatened species under the Endangered Species Act (ESA) a year or so ago.  The threat arose because of shrinking habitat caused by polar ice melting.  That ice melt is, of course, a result of climate change.

Once a species is classified as threatened or endangered, the ESA requires the government  to take steps to mitigate that threat and conserve the species’ habitat.  However, even as the Bush folks acknowledged (because they had to) that the bear was threatened, they propounded a rule excluding carbon emissions from regulation under the Endangered Species Act.  Thus, the very emissions that threatened the bear and whose diminution could lead to conservation of its habitat were not subject to regulation under the ESA.

The Obama Administration had the opportunity to rescind this rule but today, Secretary Salazar announced it would not. In his view, “[t]he Endangered Species Act is not the appropriate tool for us to deal with what is a global issue, and that is the issue of global warming.”  While environmentalists had hoped to use the ESA to force cuts in greenhouse gas emissions, the Obama Administration is attempting to craft legislation and administrative rules that directly address the issue rather than work through a statute that arguably lacks the specificity necessary to accomplish the task.

I am of two minds about all this.  Though certain that the previous administration’s reasons for crafting the rule had little or nothing to do with developing an effective climate change mitigation regime, I do give the Obama folks the benefit of the doubt here, especially since they are in the process of crafting new rules and legislation.  I also agree that the ESA is not the best vehicle for addressing issues of climate change.

On the other hand, lots of statutes get adapted and applied in ways their drafters never imagined.  Furthermore, part of the ESA’s power lies in the fact that it is a blunt instrument.  If a species is threatened, then the law says that steps must be taken.  In that sense, the ESA is an excellent way to address climate change.  It forces the issue and demands swift unequivocal action.

By contrast, declaring a species threatened while simultaneously stripping the ESA of  jurisdiction over that threat renders the law impotent and irrelevant.  That is not good precedent.  Not good precedent at all.

Thoughtful post on the issue here.

–David Cassuto