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The Endangered Species Act, Critical Habitat and Polar Bears

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When the Bush Administration designated the polar bear as “threatened” last year, it did so because of computer models showing a dangerous decline in the ice cover the bears need to survive. The models were challenged at the time, both as to their accuracy and as to legal sufficiency as data sufficient to support a listing under the Endangered Species Act. Those of us who practice in the area of the ESA knew that once a listing was in place, the effects that would spin out from such a designation would be ruinous to individuals making their livings in and around the protected species’ habitat. The ESA is such a draconian statute that it should be invoked only when the science is clear and compelling, not speculative. The devastation to California’s Central Valley because of the listing of the delta smelt is just the most recent in a long line of ESA-triggered disasters.

Now the after-effects of the polar bear listing are beginning to arrive. The New York Times cheers the recent designation of the bear’s “critical habitat” as “it seems highly unlikely that Mr. Salazar would authorize major oil and gas development in territory that his own Fish and Wildlife Service has identified as crucial to the bears’ future.”

“The designation of critical habitat does not automatically bar commercial activities like oil and gas drilling,” the paper correctly observes. “It does mean that such activities, if they occur on federal land or require a federal permit, cannot go forward without intensive review by agencies like the Fish and Wildlife Service, which can limit them or prohibit them.” Exactly right. The United States Fish and Wildlife Service is now a partner in every drilling operation in or even near the vast area designated as “critical habitat” for the polar bear.

There is no scientific connection, of course, between the lands designated as critical habitat for the bear and the loss of ice which propelled the polar bear on to the list. Designating the critical habitat will in no way hinder the loss of more ice or speed the return of lost ice. According to the Service when the bear was listed, climate change was the culprit, and climate change cannot be affected by the oil exploration in the critical habitat area or even the consumption of the oil produced there. No serious scientist would even begin to argue differently.

But still the designation occurred because the ESA demands it and now all of the exploration in the area is burdened with more government review and more vetoes while the bear’s situation changes not a bit. We lose oil and natural gas but the bear’s situation is not altered one bit.

That’s the ESA in operation, and the accumulation of such inanities is why we have an energy crisis in America. It is also a demonstration why we will never build the giant wind farms some envision, or necessary new pipelines, or the massive improvements to the electricity grid we need or the nuclear power plants we must have. The only context in which the designation of the polar bear habitat makes sense is deindustrialization.

Whenever a species is listed as “endangered” or “threatened,” the ESA demands that its “critical habitat” be designated. It happened recently not just with the polar bear, but also with Buena Vista Lake Shrew and the arroyo toad. It happens all the time in fact. Very few land owners know of the designation and won’t know of it until the time comes to use their land in a way that requires a permit of some sort from the federal government. At that point the stop sign goes up and the demand letter arrives from the feds –and that’s the best case. A critical habitat designation can delay a project for years or completely halt it –even when the species in question does not live on the land involved.

This is not rational species planning and it is profoundly damaging to economic growth and especially to property rights. Years of inaction by landowners and of accommodation by big interests such as the largest oil and gas companies have allowed the ESA’s burdens to spread to nearly every western state. The lawyers and staffs of the environmental groups are extremely competent in the use of the ESA, as the entire polar bear fight showed yet again.


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