February 25, 2011

"CliffsNotes" on polar bear hearing

By "CliffsNotes" on polar bear hearing

Author: Reed Hopper

In May, 2008, the U.S. Fish and Wildlife Service listed the polar bear as a "threatened" species under the Endangered Species Act.  This resulted in a number of challenges by environmental groups, the State of Alaska, conservation groups, and Pacific Legal Foundation representing farmers, land owners, as well as small and minority businesses.  

If you want to find out what the case is really about, you can read the thousands of pages the Service produced in suppprt of the listing and the hundreds of pages of briefs the parties submitted to the court, like those of us who have been litigating this case for nearly three years, or, you can read further for the capsule version.

On Wednesday, February 23, the D.C. District Court heard final arguments in the case.  In effect, three positions were presented.  The environmentalists argued that polar bears are starving, populations are declining, and polar bear habitat is disappearing at an increasing rate.  Therefore, they say, the Service should have listed the polar bear as "endangered" and not "threatened." 

These terms are legally defined.  Under the Act, the term "endangered" means a species "in danger of extinction" throughout all or a significant portion of its range.  The Service defined "in danger of extinction" as "on the brink of extinction in the wild" implying immediately imperiled.  The term "threatened" means a species "likely" to become in danger of extinction "within the foreseeable future" throughout all or a significant portion of its range.  The Service defined foreseeable future for the polar bear as 45 years. 

At the hearing, the Service took the position that the record does not support the alarmist views of the environmentalists.  In fact, according to the Service, the record clearly shows that:

1.  polar bear populations are not declining overall but are the highest in recorded history;

2.  polar bears continue to utilize their historic range, which is circumpolar and one of the largest habitats in the world;

3.  polar bears do not face any sudden and calamitous threat;

4.  polar bears are not rare, or on the brink of extinction, or critically imperiled;

5.  14 of 19 polar bear populations are stable, INCREASING, or uncertain in number;

6.  the only population that has shown a statistically significant decline in population (about 1% a year) is the Western Hudson Bay population that is 900 strong, but is still reproducing and recruiting.  Interestingly, this population is in Canada and outside the regulatory control of the United States.

7.  And, any changes in polar population is likely to be gradual over many years.

As for the State of Alaska, and Pacific Legal Foundation, we asked the commonsense question: If the above-listed factors indicate that polar bears are not "on the brink of extinction"now, then why does the Service believe they will be "on the brink of extinction" in the foreseeable future?   You see, rather than simply challenging the facts, we are asking the Service for an explanation, as the law requires.  Under the law, an agency must explain how each of its conclusions is supported by the evidence on which it relies.  This presents a problem for the Service because the agency has not defined "likely" or "on the brink of extinction."  In answer to the question, the only response offered by the Service is that "well … the evidence is overwhelming that the polar bear is "threatened."'" In other words, "trust us!" We must now await the judge's ruling as to whether this response is adequate.  A decision is likely to be issued in a few months.

On another point, the environmentalists rest virtually their entire case on a so-called Bayesian model that predicted an 80% decline in polar bear population by mid century.  But the Service argues that this model is not the best available science because it was only a test model without peer review that relied on questionable assumptions.  And, it flatly contradicted other forecast models by the USGS that predicted an 80% survival rate for polar bears in mid century.  It now appears that the proponent of the Bayesian model has moderated his views.  In a recent article, he acknowledged that the Bayesian model was incomplete and a more refined model indicates that declines in polar bear populations will be gradual and not precipitous as originally projected.   

Finally, it should be understood that this case is not ultimately about polar bears.  Polar bears are a surrogate for global warming.  This is the first species to ever be listed because of perceived threats from global warming.  The ultimate issue in the case is who should control national global warming policy.  Should national global warming policy be established by elected officials through the give and take of the legislative process or should it be relegated to unelected judges who can dictate green house gas emissions through the coercive power of the ESA?  That's why this case is so important.  And, that's why PLF is involved.

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