Polar Bears — The New Canary

David Cassuto

Long ago, miners used canaries to measure the build up of toxic gases in the mines where they were working.  If the canary died, it was time to head out because the air was dangerous.  We don’t use canaries in mines anymore.  Now we use polar bears in the Arctic.  The threat to the bear serves as a monitoring mechanism of sorts for the global threat from carbon emissions in the atmosphere.

As you may recall, the impending demise of polar bears due to habitat destruction attributed to global warming generated some hooha not too long ago.  W’s Interior Secretary, Dirk Kempthorne, hemmed and hawed for as long as possible before finally declaring the bear a “threatened” species under the Endangered Species Act.  That designation would normally require federal action to address the cause (global warming) of the bear’s habitat.  However, the Bushies propounded a rule — later embraced by the Obama Administration, excluding carbon emissions from regulation under the ESA.  That made the bear’s victory (such as it was) pyrrhic at best.  Nonetheless, in the heady optimism of the time, many (including me) felt that it was perhaps better to wait for a statute explicitly aimed at mitigating national emissions rather than to use the blunt instrument of the ESA to accomplish a very complex regulatory act.

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Obama and the Endangered Species Act

Gillian Lyons

During his campaign, Obama’s campaign spokesman noted that,  “as president, Senator Obama will fight to maintain the strong protections of the Endangered Species Act.”  Just a few months after taking office, this statement rang true, when the Obama administration reversed the Bush administration’s eleventh-hour regulation which circumvented Endangered Species Act mandates by allowing federal agencies to make their own determination as to whether their projects would harm endangered species, without having to consult with the Fish and Wildlife Service or the National Marine Fisheries Service.  According to Carl Pope, former executive director of the Sierra Club, this move by the Obama administration brought science back into the Endangered Species decision-making process, and numerous environmental groups hailed the move as a major protective step for threatened species.   Continue reading

Some Preliminary Steps Toward Regulating Nonpoint Source Pollution

David Cassuto

At long last, EPA is taking steps (or beginning to take them) toward addressing nonpoint source pollution of the nation’s waters.  Nonpoint sources are pretty much all those pollution sources that cannot be traced to the end of a pipe.  The Clean Water Act is far less concerned with nonpoint sources than with point sources, a historical exclusion that has much to do with the fact that when the Clean Water Act was enacted, point sources were low-hanging fruit from a regulatory perspective, and were also the primary polluter of the nation’s waters.  The CWA has done a great deal to decrease point source pollution and the nation’s waters fare much the better for it.  However, over the last 4 decades, nonpoint source pollution has greatly increased in the absence of meaningful regulatory oversight.              Continue reading

Cute Frogs and the Death of Nature (But Certainly Not the Oil Spill…)

David Cassuto

This post is not about the oil spill in the gulf.  It´s not about the hideous and incalculable damage to fragile coastal wetlands, marine life, and shore birds, or the other collateral damage from this petroleum-based nightmare.  It´s not about the lack of a viable disaster plan or the continued national unwillingness to connect this spill with unsustainable consumption levels.  Nor is it about BP´s ongoing denial of the seriousness of the spill or the Obama Administration´s tepid public response coupled with inadequate laws and a dysfunctional system of oversight.   Continue reading

The Return of the Bully Pulpit — Obama´s Conservation Initiative

David Cassuto

Children in the United States spend about half as much time outside as their parents did.  Between 1995 – 2020, more land will be converted to housing in the Chesapeake Bay area than in the previous three and a half centuries.  Theodore Roosevelt is one of Barack Obama´s favorite presidents.  And President Obama will likely never shoot a bear.

This is some of the takeway from the launch of the president´s new conservation initiative — an admirable effort to cobble together a coalition of the willing to do something other than bomb other nations.  The idea is to bring federal and  state governments and the private sector together to encourage outdoor recreation, connect wildlife migration corridors and facilitate the sustainable use of private land.  In a time of little available $$ and dwindling public will, this seems like a useful way to refocus the national gaze on the natural world.  Particularly strategic (and true) is the argument that conservation initiatives create rather than cost jobs.     Continue reading

Interior Proposes Polar Bear Habitat

David Cassuto

polar_bear_iceA while back, the Bush Administration reluctantly declared the polar bear threatened (under the Endangered Species Act) due to global warming and shrinking habitat.  It determined, however, that it would not use the ESA as the basis to require steps to curtail climate change.  Indeed, the Bushies had no intention of curtailing climate change at all.  The Obama folks agreed that the ESA was the wrong means through which to make climate policy.  Thus, the bear remained threatened and the government remained unwilling to take steps to protect it Continue reading

Polar Bears, Secretary Salazar and Climate Change

Polar Bear ClimatePolar 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