I started writing about the polar bear and the Endangered Species Act in early 2008. The quick summary: Environmental activists pushed for the listing of the bear as a first step in regulating all greenhouse gas emissions in the lower 48, and to do so in a far more brudensome way than any cap-and-trade system envisions. When the Bush Administration listed the bear last year, it did so with a proclamation that the bear’s “endangered” status could not be used to regulate projects outside of the area of its native habitat, and then followed up with regulations to that effect.
Yesterday the Senate voted 52 to 42 to in essence revoke those regulations and that declaration. When a final spending bill passes next week or the week thereafter, the polar bear will be just another endangered species, and any federal permit that can be argued to impact the species –say by allowing greenhouse gases to be emitted in greater quantities in connection with offshore drilling in the Gulf of Mexico– will have to pass through a “consultation” with the U.S. Fish & Wildlife Service. Environmental groups can sue to force such consultations. Such consultations are very expensive and time consuming, and while the polar bear’s huge shadow on the lower 48 will be very good for my law practice, it will be very bad for an economy in recession.
No industry group has yet begun any sort of legal action to forestall the use of the polar bear to regulate such things as highway construction or energy exploration, trusting perhaps in the promises of the now departed Bush Adminstration officials who thought they could outsmart the very big brains and very good lawyers of the environmental movement. When the first demands are made on federal agencies to consult on impacts to the polar bear, there will be no excuse for surprise or shock. The good news is that the underlying rationale for the listing of the species remains very suspect and will eventually come before appeals courts and hopefully SCOTUS. But until then, chalk another loss up for economic growth, energy independence and property rights.