what the "cap and trade" bill says about the Endangered Species Act and global warming


The federal government listed the polar bear under the Endangered Species Act because of the perceived threats to its habitat due to global warming.  Presumably, the government and environmental groups may use the listing to fight global warming — any activity that may contribute to global warming may also harm the polar bear and so should be regulated under the ESA listing.

But the Endangered Species Act was not meant to address the complex issue of global warming, a concept that is not even universally accepted.  The Congress of 1973 did not consider global warming when it enacted the ESA, and the Congress of 2008 apparently does not believe the ESA to be the appropriate method to address global warming either.

This week the U.S. Senate will debate a "cap and trade" carbon regulation program.  Contrary to the ESA, this bill is meant to deal with global warming.  Senator John Kerry, among others, admitted as much in discussing the bill when he noted that "he was disturbed by the effects of global warming on 'crustaceans' and so would be pursuing changes to ensure that New England lobsters benefit from some of the loot."

Whatever the merits of this bill are, Congress clearly does not have the ESA in mind when it comes to global warming and climate change policy.  Federal agencies and courts should take note.