Tuesday, October 18, 2011

Enviros Comment On "Bittersweet" Ruling On 4(d) Polar Bear Rule

Oct 17: In response to a challenge brought by the Center for Biological Diversity (CBD), Natural Resources Defense Council (NRDC), Greenpeace and Defenders of Wildlife, a Federal judge struck down a Bush administration rule that exempted greenhouse gas emissions from regulation under provisions of the Endangered Species Act (ESA). U.S. District Court Judge Emmet Sullivan, for the D.C. District, ruled that the Department of the Interior (DOI) violated the environmental review provisions of the National Environmental Policy Act (NEPA) when it issued a special rule that excluded from regulation activities occurring outside the range of the polar bear, such as greenhouse gas emissions from polluting facilities like coal plants.

    The groups reported, however, the court also held that DOI had broad discretion when crafting species-specific rules and therefore did not substantively violate the ESA in adopting the exemption for the polar bear. A similar interim rule issued simultaneously with listing of the polar bear as threatened in May 2008 remains in place until Interior complies with NEPA by completing a new environmental impact statement and issues a new final rule. The polar bear was the first species added to the endangered species list solely because of threats to the species from global warming. The groups said the ruling does not limit the applicability of the ESA to greenhouse gas emissions affecting species listed as endangered under the Act or to other threatened species for which Interior has not issued a specific exemption.

    Brendan Cummings at CBD commented, "Today's decision squarely places the fate of the polar bear back in the hands of the Obama administration. Rather than continue to defend an ill-conceived Bush-era rule, the Obama administration should take this opportunity to carefully craft a new rule that meaningfully addresses greenhouse gas emissions, the primary threat to the polar bear." Andrew Wetzler, director of the Lands and Wildlife program for NRDC said, "Now that the Department of the Interior must weigh in for the first time with full environmental analysis, the Obama administration is going to own this issue. It affords the president an opportunity to show he is serious about dealing with climate change and protecting wildlife. The court's ruling means the Obama administration won't be able to hide behind Bush-era policies on an issue the public clearly cares about."

    John Hocevar, oceans director at Greenpeace said, "The court's decision is bittersweet -- it acknowledges the devastating impact of global warming on polar bears and requires further review of the 4(d) rule, but stops short of fully disallowing an exemption for greenhouse gases. We will redouble our efforts to protect the polar bear's Arctic Ocean habitat, and continue to press the Obama administration to use all available tools, including the Endangered Species Act, to address greenhouse emissions and the climate crisis."

    On May 8, 2009, Department of Interior (DOI) Secretary Ken Salazar announced that he would retain the controversial special rule issued in December 2008, under the Bush Administration for protecting the polar bear under the Endangered Species Act [See WIMS 5/8/09]. But DOI said it would 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 at the time, "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." At the same time, Salazar had received a letter from 53 law professors from around the country urging him to rescind the "special rule" created by the Bush administration which they said sharply limits protections for the polar bear under the Endangered Species Act.
    In the case , Judge Sullivan explained, "Plaintiffs claim, first, that the Service's Special Rule violates the ESA because it fails to provide for the conservation of the polar bear. Specifically, plaintiffs contend that the Service cannot effectively provide for the conservation of the polar bear without addressing global greenhouse gas emissions, which the agency itself identified as the cause of increasing Arctic temperatures that are expected to lead to a significant decline of the polar bear's sea ice habitat. Plaintiffs argue that the Service purposely and unlawfully crafted its Special Rule in such a way as to avoid addressing this threat, in contravention of the ESA's conservation mandate. The Court understands plaintiffs' frustration. However, as this Court has previously observed, climate change poses unprecedented challenges of science and policy on a global scale, and this Court must be at its most deferential where the agency is operating at the frontiers of science. . .
    "The question before the Court, then, is whether the Service reasonably concluded that its Special Rule provides for the conservation of the polar bear even if it does not reverse the trend of Arctic sea ice loss. . . the Court is persuaded that the
agency has done so. Accordingly, with respect to plaintiffs' ESA claim, the Court denies plaintiffs' motion for summary judgment and grants the federal defendants' and defendant-intervenors' motions for summary judgment. . .
    "In addition to their claims under the ESA, plaintiffs claim that the Service violated NEPA by failing to analyze the potential environmental impacts of its Special Rule, which is generally required for all 'major Federal actions significantly affecting the quality of the human environment.' 42 U.S.C. § 4332(2)(c). With respect to this claim, the Court agrees with plaintiffs. The Court declines to recognize the broad NEPA exemption that the federal defendants urge. Accordingly. . . the Court finds that the Service was required to conduct at least an initial assessment to determine whether its Special Rule for the polar bear warranted a full 'environmental impact statement' (EIS). Here, the Service conducted no analysis whatsoever; as a result, its Special Rule for the polar bear violates NEPA.
    "Accordingly, with respect to plaintiffs' NEPA claim, the Court grants plaintiffs' motion for summary judgment and denies the federal defendants' and defendant-intervenors' motions for summary judgment. The Court finds that vacatur of the final Special Rule is the appropriate remedy for the Service's NEPA violation. Upon vacatur of the final Special Rule [i.e. December 16, 2008], the prior May 15, 2008, interim final Special Rule for the polar bear shall remain in effect until further Order of the Court." 
    Access a release from the environmental groups (click here). Access the Doc No. 283 memorandum opinion (click here)Access a 5/2009 release from DOI and link to a Section 4(d) Q&A document (click here). Access the DOI Polar Bear Conservation and Management website (click here). [#Wildlife, #Climate]
Click here for more information on WIMS