May 11, 2009

The intent of Congress?

By Damien M. Schiff Senior Attorney

Andrew Torrance of the Biolaw Blog excoriates the Interior Department for not removing the polar bear 4(d) rule.  Mr. Torrance contends that the "clear intent and letter of the Endangered Species Act" supports ESA-climate regulation.  Mr. Torrance supports this rather extravagant assertion with the usual quotations from TVA v. Hill.

Frankly, we are mystified by this reasoning.  How possibly could the 1973 or 1978 or 1979 Congress have intended to regulate a problem which did not exist?  And where in the letter of the Act is there any warrant for regulating greenhouse gases per se?  To be sure, the ESA countenances the regulation of federal activities that jeopardize a species; but there's the rub:  how can the emissions of a single project have any measurable effect, let alone a jeopardizing effect, on any polar bear, or the entire population of polar bears?

Mr. Torrance's reliance on TVA v. Hill is misplaced.  In TVA, it was undisputed that the construction of Tellico Dam would extinguish the snail darter; the only question was, therefore, whether, as a matter of equity, the dam project could go through anyway.  But with the polar bear, the issue is quite different; it is, rather, whether any given greenhouse gas-emitting project actually jeopardizes the polar bear.

When will people in Mr. Torrance's camp realize that, if they are to effect their views of climate change policy, it must be done through the legislative, not judicial, branch?

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