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Legal fray likely after ruling on polar-bear status
Anchorage Daily News


January 04, 2008
Monday PM

If U.S. Fish and Wildlife Service director Dale Hall really thinks he can do nothing about greenhouse gases to save the polar bear, he'll be hearing soon from Kassie Siegel.

Hall told a congressional hearing last week he doesn't think the Endangered Species Act is the right law to force reduction of emissions blamed for warming the planet and shrinking the polar bear's ice habitat.

But environmentalists like Siegel, a lawyer and climate specialist for the Center for Biological Diversity, say they'll go to court if the federal government decides this month to declare the polar bear a "threatened" species -- but does nothing about the fundamental cause of global warming.

It's no idle threat. Her group, based in Tucson, Ariz., has filed more than 500 petitions and lawsuits over endangered species since it was founded in 1989. Two years ago, the center joined with two powerful environmental groups, Greenpeace and the Natural Resources Defense Council, to begin the push for polar-bear protection.

The polar bears' future may be in the hands of biologists and climate scientists right now, as the Fish and Wildlife Service is expected to decide within days on an endangered-species listing. But after that decision, the lawyers take over.

Nobody knows whether the Endangered Species Act, invoked for the first time due to climate-change forecasts, could extend its reach as far from polar-bear habitat as the auto factories of Michigan and the coal-fired power plants of the Southwest.

Whichever way the Fish and Wildlife Service moves, the agency is certain to be second-guessed in court, with lawsuits from environmentalists on one side and industry on the other.

"It is wide-reaching, but that is a really good thing," Siegel said of the endangered-species law. She dismissed Hall's reluctance to take on emissions as "utterly outrageous."

"We don't save the polar bear without reducing greenhouse-gas emissions rapidly," she said. "In the absence of laws that do that, we have to look at the laws we have."

On the pro-industry side, critics of the environmentalists say Congress never intended the endangered-species law to reach so far. They predict a long siege of lawsuits aimed at the nation's energy-consuming economy.

Rep. Don Young, R-Alaska, described last week's legal challenge of a pending federal oil and gas lease sale in the Chukchi Sea as "the first of an endless series of court challenges and appeals" using the polar bear to clamp down on energy production in Alaska and the Lower 48.

The logic of the endangered-species law invites citizen lawsuits, said Marlo Lewis, a senior fellow at the Competitive Enterprise Institute in Washington.

"I think they'll go slow and pursue an incremental strategy," Lewis said. "They know that incrementalism is really the key to success in American politics."

The Fish and Wildlife Service has a $152.5 million budget this year for dealing with endangered species. That's not for efforts like buying habitat -- it's just for the paperwork, studies and legal briefs necessary to grapple with new petitions and protection plans for listed species.

If the polar bears are deemed threatened, the federal agency will have to take steps in three areas: designate critical habitat, prepare a recovery plan and "consult" with federal agencies on new permits for activities that could affect the bears. All three areas are subject to litigation.

The political cross-currents can be tricky, however. Not every group is lining up clearly on one side or the other.

Audubon Alaska officials, for example, said last week they hope to see the polar bear listed and federal protection concentrated on Alaska, particularly on denning habitats and the ice edge frequented by bears. A focus on distant emissions would make regional protective efforts less effective, they said.

"The polar bear helps raise the profile of climate change, but the Endangered Species Act is not ultimately the tool for addressing global warming on a national and international scale," said Audubon Alaska executive director Stan Senner.

On the other hand, the North Slope Borough, which opposes a threatened-species listing for the bear, says it would be unfair to focus restrictions solely on the Arctic.

Rapid decrease of ice is "beyond credible debate," the borough said in its formal comments, and a serious concern for indigenous people.

"We recognize that the causes of a changing northern climate lie outside of our region, and firmly believe that any action to counter the warming trend must focus on those causes at their sources," wrote borough Mayor Edward Itta.

The Fish and Wildlife Service will have a difficult job if it tries to tie emissions from a particular new project to the polar bear's fate, said Larry Bell, an agency spokesman in Anchorage.

"How do you assign blame?" said Bell. "How can you say which was the straw that broke the camel's back?"


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