First the good news: the U.S. Fish and Wildlife Service (FWS) last week designated a huge expanse of barrier islands, denning areas, and sea ice in the Arctic as “critical habitat” for polar bears under the federal Endangered Species Act. The largest such protected area in the ESA’s history, the new critical habitat covers an area larger than the states of Oregon and Washington combined.
FWS listed polar bears as “threatened” in 2008, after a petition from environmental organizations and a study by the U.S. Geological Survey indicated that shrinking sea ice caused by climate change could reduce the polar bear population by two-thirds within fifty years. Polar bears have since become a powerful symbol of the overwhelming threats to species and ecosystems posed by global warming.
Critical habitat under the ESA refers to the area containing the biological and physical features essential to the recovery of listed species. While the Bush Administration was extremely reluctant to designate adequate critical habitat for threatened and endangered species, the Obama Administration has indicated that it is much more willing to follow the letter of the law in delineating habitat that needs special legal protection.
Now the bad news: an unfortunate combination of FWS policy and a recent court decision may mean that the massive new critical habitat designation will actually afford polar bears little in the way of new legal protections.
Section 7 of the ESA bans federal agencies from taking actions that “destroy or adversely modify” critical habitat. However, when FWS added polar bears to the threatened list in 2008, it took the position that the ESA’s key sections do not apply to greenhouse gas emissions – meaning that FWS interprets the ESA to do little to actually regulate the human actions posing the biggest threat to polar bears and their critical habitat. Perhaps surprisingly, though this reading of the ESA dates from the Bush years, the Obama Administration has supported it as well.
The importance of critical habitat designation under the ESA also suffered a blow in June, when the Ninth Circuit Court of Appeals issued a decision interpreting the extent of legal protection for designated critical habitat. The court upheld a FWS decision allowing a federally-authorized project to proceed even though it would destroy a small portion of designated critical habitat for two listed species. This ruling makes it much more likely that FWS and the National Marine Fisheries Service can authorize incremental destruction of even land identified as essential for species recovery.
Overall, FWS’ recent designation of critical habitat for polar bears underlines the importance of arctic areas covered with adequate sea ice to allow the bears to thrive, and highlights the threats to this habitat posed by human-caused climate change. Unfortunately, however, without significant policy shifts by the federal agencies entrusted with interpreting and implementing the ESA – or better yet, a strong greenhouse gas reduction strategy mandated by Congress – the law may do little to actually stem the greenhouse gas emissions that are causing polar bear critical habitat to literally melt away.
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Dan Rohlf | November 30, 2010
First the good news: the U.S. Fish and Wildlife Service (FWS) last week designated a huge expanse of barrier islands, denning areas, and sea ice in the Arctic as “critical habitat” for polar bears under the federal Endangered Species Act. The largest such protected area in the ESA’s history, the new critical habitat covers an […]
Yee Huang | November 30, 2010
Yesterday was the deadline for Bay states and the District of Columbia to submit their final Phase I Watershed Implementation Plans (WIP). These WIPs are roadmaps that describe how Bay jurisdictions will meet their pollutant reduction obligations under the Bay TMDL. Delaware, the District of Columbia, Pennsylvania, Virginia, and West Virginia submitted their plans by the deadline, […]
Holly Doremus | November 24, 2010
Cross-posted from Legal Planet. The White House Council on Environmental Quality has issued the first of three expected final guidance documents for federal agencies implementing the National Environmental Policy Act. This one, which covers the use of categorical exclusions, is an excellent start. NEPA is the “look before you leap” environmental law. It requires that […]
Ben Somberg | November 19, 2010
“In order for CBA cost benefit analysis to be workable, regulators need to have a relatively restricted range of possibilities.” That’s what OIRA Administrator Cass Sunstein wrote in a 2007 book. So how about from $82 billion to negative $251 billion, a third of a trillion dollars – is that a relatively restricted range? Those […]
Ben Somberg | November 19, 2010
Senator Mary Landrieu released her hold on the nomination of Jacob Lew for Director of the Office of Management and Budget, and the Senate confirmed Lew by voice vote Thursday evening. Back when Lew had his confirmation hearings, CPR President Rena Steinzor wrote here about the challenges Lew will face on the regulatory front (“OMB […]
Victor Flatt | November 17, 2010
Last week the EPA released its “PSD and Title V Permitting Guidance For Greenhouse Gases.” This Guidance was designed to give the states direction in how to implement permitting requirements for new sources for other criteria pollutants that also produce greenhouse gases on January 2, 2011, and new sources of greenhouse gases following in May, 2011, […]
Rena Steinzor | November 17, 2010
One of the most powerful sleights of hand achieved by Republicans during the last election cycle was their renewed declaration of war on regulation. It’s no secret which of their interest groups are most passionate about this aspect of their agenda. Tuesday’s LATimes previewed a plan by the Chamber of Commerce, to be announced today, to further […]
Ben Somberg | November 15, 2010
The EPA announced this morning that it has finalized numeric nutrient criteria for Florida waters — specific limits on the amounts of nutrient pollutants allowed in the state’s water bodies. These criteria will in turn limit discharges by point and non-point sources. Currently, nutrient limits are set only by “narrative” water quality standards — which […]
James Goodwin | November 11, 2010
Late last month, the White House Office of Information and Regulatory Affairs (OIRA) posted on its website a document called Agency Checklist: Regulatory Impact Analysis, which, according to the document, is intended to assist federal regulatory agencies with Executive Order 12866-required cost-benefit analyses (CBAs). Such analyses have become a standard, if fatally flawed, stage in the […]