Potential Change to Polar Bear ESA Rule

When the polar bear was listed as threatened under the Endangered Species Act in 2008, the Bush Administration issued a rule stating that the ESA couldn’t be used to regulate greenhouse gas emissions even if a listing was due to climate change. This rule represented a blow to conservationists, rendering the ESA incapable of being invoked to address threats to climate sensitive wildlife. The polar bear case was complicated by a number of other factors including the threats posed by energy development in the Arctic, the politics of hunting and indigenous rights in Canada, and the clear reluctance of Bush Administration officials to list any species without the threat of legal action, and even then to do so minimally and grudgingly. But reduced to essentials, the decision meant that the polar bear and its fellow climate sensitive species – notably, the wolverine, the pika, and the walrus, all of which have been considered for listing between 2008 and the present – would be excluded from the protections that the ESA offers to species threatened by in-habitat issues like point source pollution, destruction of habitat, and over-harvesting.

Last week, in response to a lawsuit by four environmental organizations, a district judge handed down a ruling that the government’s failure to conduct an environmental review before issuing the rule constituted an error, and sent the decision back to the government to obtain a review. This decision (summarized by NPR, detailed in an article in the LA Times, and commented upon by the environmental groups involved) opens a tiny window through which environmental groups might maneuver to obtain stronger protections for climate sensitive wildlife.

Unfortunately, though, the details of the decision suggest that this won’t happen. The judge ruled that the lack of an environmental review was a serious problem, but affirmed that the government has the right to decide what types of harm are allowable to species listed as ‘threatened’ rather than ‘endangered.’ The polar bear population, classified at this lower level of risk, is deemed robust enough to withstand further losses, and therefore a population reduction due to climate change is – officially, anyway – not a cause for concern. (The environmental groups sued to upgrade the polar bear’s status to endangered earlier this year, but lost.) The Obama administration has until November 17th to submit a timeline for writing the review.

What does this mean for wolverines? I’ve devoted previous posts to the paradox of the push to list the species, and although I believe that the scientific evidence states that the wolverine should be on the list, I’m torn at the thought of spending huge amounts of money on a species when only the proximate causes of the threat are being addressed; if that money could go to actually saving a species facing in situ threats, maybe it would be better to put the money towards that species. But if the polar bear rule is struck down and the ESA is enabled as a tool for regulating ex situ threats like greenhouse gas emissions, I can stop coping with this split-personality problem and cheer for listing without any reservation. (Or, of course, if we actually adequately fund the USFWS, we could work on saving all the species, thus likewise eliminating conflict over the issue….)

Gulos are currently candidate species for listing, with a final decision due by 2013. For so many reasons, I wish the decision on the polar bear rule had come down earlier, not in the run-up to an election year; the timing means that the decision will be more subject than usual to the pull of politics. Regardless, though, it at least represents an acknowledgement that the rule was made too hastily and warrants review. Hopefully by 2013, if the wolverine is listed, the listing will actually offer protection.

On the subject of climate change, a very short interview with climate scientist Synte Peacock highlights her interest in wolverines and her work modeling snowpack conditions in the wolverine’s North American habitat. In the ongoing process of building a chain of evidence that wolverines are threatened by climate change effects in the US, her work shows that snowpack conditions at the core of wolverine range are likely to decline over the next century. The study isn’t cheerful, but it does at least offer multiple scenarios (depending on how we act – or don’t – on the threats) and some are better than others. So that’s a (very) small bright side.