Author: Reed Hopper
The Endangered Species Act prohibits harm to protected species. This prohibition can be enforced against any party through a citizen suit. Therefore, environmental groups came up with the idea of petitioning to list the polar bear as a threatened or endangered species due to global warming and melting sea ice. This would allow these groups to challenge any activity that contributes (even incrementally) to global warming from greenhouse gas emissions, including carbon dioxide. Which is to say, virtually any economic activity at all.
But, these groups got only half a loaf. Although the U.S. Fish and Wildlife Service listed the polar bear as a threatened species, it simultaneously issued a "Special Rule" exempting from ESA regulation any activity occurring outside the range of the species. This exemption effectively immunized economic activities from suit in the lower 48 states and was based on the agency’s conclusion that: (1) no science exists today that can establish a causal link between a specific activity in the lower states and melting sea ice in the Arctic; and (2), even the full protections of the ESA would have no effect on global warming, a worldwide phenomenon.
Predictably, the environmental groups sued to overturn the exemption. But they lost today when the court effectively upheld the exemption (pending some additional administrative review). With respect to the groups' agenda to drive national global warming policy through litigation, the court stated:
[A]t bottom, plaintiffs’ complaint appears to be that the Special Rule pre-emptively forecloses the option of citizen enforcement actions against greenhouse gas emitters in the contiguous United States. The citizen suit provision of the ESA authorizes "any person" to commence a civil suit on her own behalf to enforce certain provisions of the statute, including penalties for prohibited takings of listed species. 16 U.S.C. § 1540(g). Plaintiffs have expressed a concern that, because no incidental take of a polar bear that occurs outside the range of the species will be considered a prohibited taking within the meaning of the ESA as a result of the Service’s Special Rule, no grounds exist for citizen enforcement actions against greenhouse gas emitters operating outside the range of the species in Alaska. By precluding citizen enforcement in these circumstances, plaintiffs contend, the Service has unlawfully eliminated a potentially useful tool for addressing greenhouse gas emissions and, ultimately, Arctic sea ice loss. However, although plaintiffs would undoubtedly prefer a broad citizen enforcement option, the Court is not persuaded that the Special Rule is arbitrary and capricious on these grounds.
The economy dodged a bullet. Had the court actually struck down the exemption, activists could have used the threat to polar bears from global warming to stop or curtail virtually any economic activity in the Nation. Instead, the judge ruled that the government had reasonably concluded that the ESA could not resolve the primary threat to the polar bear–melting sea ice.
Note: PLF did not participate in this case. Also, although the court invalidated the final exemption, it allowed the interim exemption to stand until the agency completes an environmental assessment under the National Environmental Policy Act (NEPA). The interim and final exemptions are essentially the same and both protect activities outside of Alaska from ESA suits.