May 8: Department of Interior (DOI) Secretary Ken Salazar announced that he will retain a controversial special rule issued in December under the Bush Administration for protecting the polar bear under the Endangered Species Act. But DOI said it will closely monitor the implementation of the rule to determine if additional measures are necessary to conserve and recover the polar bear and its habitat. Salazar said, “To see the polar bear’s habitat melting and an iconic species threatened is an environmental tragedy of the modern age. This administration is fully committed to the protection and recovery of the polar bear. I have reviewed the current rule, received the recommendations of the Fish and Wildlife Service, and concluded that the best course of action for protecting the polar bear under the Endangered Species Act is to wisely implement the current rule, monitor its effectiveness, and evaluate our options for improving the recovery of the species.”
Salazar's action follows his receipt of a letter from 53 law professors from around the country urging him to rescind the “special rule” created by the Bush administration which they say sharply limits protections for the polar bear under the Endangered Species Act. David Hunter, director of the environmental law program at American University’s Washington College of Law said, “The polar bear deserves the same protections all other endangered species receive. Secretary Salazar should use authority granted to him by Congress to rescind the special rule for the polar bear.” Noah Greenwald, biodiversity program director at the Center for Biological Diversity (CBD) said, "For Salazar to adopt Bush's polar bear extinction plan is confirming the worst fears of his tenure as Secretary of the Interior. Secretary Salazar would apparently prefer to please Sarah Palin than to protect polar bears. It makes little sense for Salazar to rescind Bush's national policy barring consideration of global warming impacts to endangered species in general, but keep that exact policy in place for the one species most endangered by global warming -- the polar bear." [See WIMS 3/4/09]
Salazar's action follows his receipt of a letter from 53 law professors from around the country urging him to rescind the “special rule” created by the Bush administration which they say sharply limits protections for the polar bear under the Endangered Species Act. David Hunter, director of the environmental law program at American University’s Washington College of Law said, “The polar bear deserves the same protections all other endangered species receive. Secretary Salazar should use authority granted to him by Congress to rescind the special rule for the polar bear.” Noah Greenwald, biodiversity program director at the Center for Biological Diversity (CBD) said, "For Salazar to adopt Bush's polar bear extinction plan is confirming the worst fears of his tenure as Secretary of the Interior. Secretary Salazar would apparently prefer to please Sarah Palin than to protect polar bears. It makes little sense for Salazar to rescind Bush's national policy barring consideration of global warming impacts to endangered species in general, but keep that exact policy in place for the one species most endangered by global warming -- the polar bear." [See WIMS 3/4/09]
The polar bear is listed as a threatened species under the Act [See WIMS 5/15/08], meaning it is at risk of becoming an endangered species throughout all or a significant portion of its range. The law provides civil and criminal penalties for actions that kill or injure bears and bars Federal agencies from taking actions that are likely to jeopardize the species or adversely modify its critical habitat. In addition, the polar bear is protected by the Marine Mammal Protection Act (MMPA), which provides equal and in some cases more stringent protections, and international treaties such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
DOI says Section 4(d) of the ESA, the "special rule," allows the Fish and Wildlife Service "to tailor regulatory prohibitions for threatened species as deemed necessary and advisable to provide for the conservation of the species." Thomas Strickland, assistant secretary for fish and wildlife and parks said, “In our judgment, keeping the rule is the best course of action for the polar bear. We will continue to reach out and listen to the public and a wide range of stakeholders as we monitor the rule, and will not hesitate to take additional steps if necessary to protect this iconic species.” The rule also states that incidental take of polar bears resulting from activities outside the bear’s range, such as emission of greenhouse gases (GHG), will not be prohibited under the ESA.
Salazar said, “We must do all we can to help the polar bear recover, recognizing that the greatest threat to the polar bear is the melting of Arctic sea ice caused by climate change. However, the Endangered Species Act is not the proper mechanism for controlling our nation’s carbon emissions. Instead, we need a comprehensive energy and climate strategy that curbs climate change and its impacts -- including the loss of sea ice. Both President Obama and I are committed to achieving that goal.”
DOI indicated that under the Omnibus Appropriations Act of 2009, Congress granted Salazar authority until May 10 to revoke the 4(d) rule. If Salazar had decided to withdraw the 4(d) rule, a virtually identical “interim” 4(d) rule issued by the previous Administration when the polar bear was first listed as a threatened species would be put back in place. Salazar said, “Revoking the current 4(d) rule would return us to an interim rule that would offer no more protections for the polar bear and would result in uncertainty and confusion about the management of the species.”
CBD said that Salazar ignored strong criticism of the rule and requests to revoke it from more than 1,300 scientists, more than 50 prominent legal experts, dozens of lawmakers, more than 130 conservation organizations and hundreds of thousands of members of the public. They said the rule severely undermines protection for the polar bear by exempting all activities that occur outside of the polar bears range from review -- "The polar bear, however, is endangered precisely because of activities occurring outside the Arctic, namely emission of greenhouse gases and resulting warming that is leading to the rapid disappearance of summer sea ice."
CBD also indicated that the special rule also reduces the protections the bear would otherwise receive in Alaska from oil industry activities in its habitat. Greenwald said, “Salazar’s decision today is a gift to Big Oil and an affirmation of the pro-industry/ anti-environmental policies of the Bush administration. This is not the change Obama promised.” The Center for Biological Diversity and other organizations are challenging the polar bear special rule in court. Oil-industry organizations, trade associations, and Alaska Governor Sarah Palin have intervened in the court case to defend the rule. CBD argues that, "Addressing greenhouse gas emissions under the Endangered Species Act is no different than addressing any other pollutants that have been effectively addressed under the Act for years, such as DDT and other pesticides that had severe impacts to the bald eagle and other species."
The law professors indicated in their letter, "We have three primary concerns with these exemptions. First, the exemption for all activities outside the current range of the species is overly broad, exempting whole classes of activities that harm polar bears. For example, the majority of contaminants, ranging from petroleum hydrocarbons, persistent organic pollutants, and heavy metals that negatively impact polar bears come from outside the current range of the species. 73 Fed. Reg. 28212, 28290. Second, exemption of all greenhouse emissions outside of the current range of the polar bear from potential regulation under Section 9 undermines the
survival and recovery of the polar bear because such emissions are the primary threat to the continued existence of the polar bear.
"Finally, the take provisions of the MMPA provide less protection for the polar bear because unlike the ESA, the MMPA’s definition of 'take' does not include the term 'harm.' Compare 16 U.S.C. § 1532(19) with 16 U.S.C. § 1362(13). Under the ESA, the 'harm' prohibition has been interpreted to include habitat modification, which significantly impairs 'essential behavioral patterns, including breeding, feeding or sheltering.' 50 C.F.R § 17.3. In eliminating the 'harm' prohibition for polar bears, the special rule potentially undermines effective protections for the polar bear’s habitat from both direct and indirect impacts."
DOI pointed out in its release that President Obama’s Fiscal Year 2010 budget request includes a significant new commitment to helping conserve the polar bear. The budget request includes an increase of $7.4 million for polar bear conservation, of which $3.2 million will be invested through the Fish and Wildlife Service. The new commitment includes a $1.5 million increase for the Endangered Species program specifically to address new and reinitiated interagency consultations on oil and gas projects and to prepare for a range-wide Polar Bear Conservation Plan to guide U.S. and international work to conserve and improve the status of the species. An increase of $1.7 million will allow the FWS Marine Mammal program to intensify work with partners to prepare, review, and publish population assessments, conservation plans, and incidental take regulations.
Access a release from DOI and link to a Section 4(d) Q&A document (click here). Access a release from CBD with links to the letters from more than 1,300 scientists, 53 law professors, eight senators, U.S. representatives, California legislators and more than 130 conservation organizations (click here). Access the DOI Polar Bear Conservation and Management website (click here). Access the CBD Polar Bear website for more information (click here).
DOI says Section 4(d) of the ESA, the "special rule," allows the Fish and Wildlife Service "to tailor regulatory prohibitions for threatened species as deemed necessary and advisable to provide for the conservation of the species." Thomas Strickland, assistant secretary for fish and wildlife and parks said, “In our judgment, keeping the rule is the best course of action for the polar bear. We will continue to reach out and listen to the public and a wide range of stakeholders as we monitor the rule, and will not hesitate to take additional steps if necessary to protect this iconic species.” The rule also states that incidental take of polar bears resulting from activities outside the bear’s range, such as emission of greenhouse gases (GHG), will not be prohibited under the ESA.
Salazar said, “We must do all we can to help the polar bear recover, recognizing that the greatest threat to the polar bear is the melting of Arctic sea ice caused by climate change. However, the Endangered Species Act is not the proper mechanism for controlling our nation’s carbon emissions. Instead, we need a comprehensive energy and climate strategy that curbs climate change and its impacts -- including the loss of sea ice. Both President Obama and I are committed to achieving that goal.”
DOI indicated that under the Omnibus Appropriations Act of 2009, Congress granted Salazar authority until May 10 to revoke the 4(d) rule. If Salazar had decided to withdraw the 4(d) rule, a virtually identical “interim” 4(d) rule issued by the previous Administration when the polar bear was first listed as a threatened species would be put back in place. Salazar said, “Revoking the current 4(d) rule would return us to an interim rule that would offer no more protections for the polar bear and would result in uncertainty and confusion about the management of the species.”
CBD said that Salazar ignored strong criticism of the rule and requests to revoke it from more than 1,300 scientists, more than 50 prominent legal experts, dozens of lawmakers, more than 130 conservation organizations and hundreds of thousands of members of the public. They said the rule severely undermines protection for the polar bear by exempting all activities that occur outside of the polar bears range from review -- "The polar bear, however, is endangered precisely because of activities occurring outside the Arctic, namely emission of greenhouse gases and resulting warming that is leading to the rapid disappearance of summer sea ice."
CBD also indicated that the special rule also reduces the protections the bear would otherwise receive in Alaska from oil industry activities in its habitat. Greenwald said, “Salazar’s decision today is a gift to Big Oil and an affirmation of the pro-industry/ anti-environmental policies of the Bush administration. This is not the change Obama promised.” The Center for Biological Diversity and other organizations are challenging the polar bear special rule in court. Oil-industry organizations, trade associations, and Alaska Governor Sarah Palin have intervened in the court case to defend the rule. CBD argues that, "Addressing greenhouse gas emissions under the Endangered Species Act is no different than addressing any other pollutants that have been effectively addressed under the Act for years, such as DDT and other pesticides that had severe impacts to the bald eagle and other species."
The law professors indicated in their letter, "We have three primary concerns with these exemptions. First, the exemption for all activities outside the current range of the species is overly broad, exempting whole classes of activities that harm polar bears. For example, the majority of contaminants, ranging from petroleum hydrocarbons, persistent organic pollutants, and heavy metals that negatively impact polar bears come from outside the current range of the species. 73 Fed. Reg. 28212, 28290. Second, exemption of all greenhouse emissions outside of the current range of the polar bear from potential regulation under Section 9 undermines the
survival and recovery of the polar bear because such emissions are the primary threat to the continued existence of the polar bear.
"Finally, the take provisions of the MMPA provide less protection for the polar bear because unlike the ESA, the MMPA’s definition of 'take' does not include the term 'harm.' Compare 16 U.S.C. § 1532(19) with 16 U.S.C. § 1362(13). Under the ESA, the 'harm' prohibition has been interpreted to include habitat modification, which significantly impairs 'essential behavioral patterns, including breeding, feeding or sheltering.' 50 C.F.R § 17.3. In eliminating the 'harm' prohibition for polar bears, the special rule potentially undermines effective protections for the polar bear’s habitat from both direct and indirect impacts."
DOI pointed out in its release that President Obama’s Fiscal Year 2010 budget request includes a significant new commitment to helping conserve the polar bear. The budget request includes an increase of $7.4 million for polar bear conservation, of which $3.2 million will be invested through the Fish and Wildlife Service. The new commitment includes a $1.5 million increase for the Endangered Species program specifically to address new and reinitiated interagency consultations on oil and gas projects and to prepare for a range-wide Polar Bear Conservation Plan to guide U.S. and international work to conserve and improve the status of the species. An increase of $1.7 million will allow the FWS Marine Mammal program to intensify work with partners to prepare, review, and publish population assessments, conservation plans, and incidental take regulations.
Access a release from DOI and link to a Section 4(d) Q&A document (click here). Access a release from CBD with links to the letters from more than 1,300 scientists, 53 law professors, eight senators, U.S. representatives, California legislators and more than 130 conservation organizations (click here). Access the DOI Polar Bear Conservation and Management website (click here). Access the CBD Polar Bear website for more information (click here).
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