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Polar Bears, The ESA, And Global Warming

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I received some e-mails skeptical of my post yesterday predicting that the listing of the polar bear as a threatened species under the federal Endangered Species Act (“ESA”) would lead to massive new regulatory controls on industries that have no idea that such controls are in the offing. These skeptics haven’t spent two decades litigating the ESA and thus don’t understand the Act’s reach once it is operating via a listing of a species as threatened or endangered.

So I went to the site for the Center for Biological Diversity, easily the most effective environmental advocacy group at work today, and found their pitch for the listing of the polar bear:

Protection under the Endangered Species Act will provide concrete help to polar bears and could revolutionize American climate policy. Since U.S. resistance to curbing greenhouse gases has allowed other countries to shirk their responsibilities as well, major changes in American policy are likely to have a powerful domino effect, catalyzing change in climate policy worldwide. The polar bear’s protected status will require a new level of environmental review before oil and gas development continue in polar bear habitat in the American Arctic. Even more critically, because it is illegal to harm threatened species or jeopardize their survival, the polar bear listing could mean that all U.S. industries emitting large quantities of greenhouse gases -and requiring a federal permit to do so -will come under the purview of the Endangered Species Act. From polluting power plants in the Midwest to auto manufacturers, a vast array of industries may have to clean up their acts to give the polar bear a chance to survive.

The first comment period on the proposed listing ended in early April, 2007, but was reopened in October of 2007 for a brief time. It might yet be reopened again. Interested parties –basically everyone that uses oil or gas– need to file comments in order to have standing to challenge the eventual decision, and ought to file even though the formal comment period has closed for the time being..

Written comments may be sent to:Supervisor, U.S. Fish and Wildlife Service, Marine Mammals Management Office, 1011 East Tudor Road, Anchorage, Alaska 99503. Comments can also be e-mailed to

The proposed rule is here.

If you operate pursuant to a federal permit and emit hydrocarbons or any other emission believed to be connected to global warming, speak now or forever hold your peace.


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