Will the Polar Bear Save the World

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Will the Polar Bear Save the World?
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Polar Bear

• They feed by stalking or hunting ringed or
  bearded seals
• Their habitat is both marine and terrestrial for
  feeding, denning, breeding, and seasonal
  movements
• Alaska has 2 populations
• Chukchi Sea population (stable/over 2000)
• Southern Beaufort Sea population
  (increasing/1800)

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Polar Bears Sea Ice Changes
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Climate Change

• On February 16, 2005, the Kyoto Protocol on
  greenhouse gas emissions came into force with 141
  parties the United States was not party.
• The U.S. accounts for 36.1 percent of the total
  1990 greenhouse gases.
• Between 1990 and 2004, the U.S. emissions have
  actually increased by 15.8 percent.
• CO2 accounts for 84.6 percent of all greenhouse
  gases in the U.S. and 94 percent of CO2 emissions
  are fossil fuel combustion.
• Of all CO2 fossil fuel emissions, transportation
  accounts for 33 percent of all CO2 fossil fuel
  emissions, 60 percent of which is for personal
  transportation use, industry accounts for 28
  percent, and residential and commercial accounts
  for 38 percent.

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Endangered Species Act

• Supreme Court At the time of passage, the ESA
  was the most comprehensive legislation for the
  preservation of endangered species ever enacted
  by any nation

• The ESA came about with Congressional recognition
  of the esthetic, ecological, educational,
  historical, recreational, and scientific value
  of species to the country.

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Endangered Species Act

• Endangered species - one that is in danger of
  extinction throughout all or a significant
  portion of its range.
• A threatened species, on the other hand, is one
  that is likely to become an endangered species
  within the foreseeable future throughout all or a
  significant portion of its range.

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What is a species?

• Includes distinct population segment
• DPS is based on

• whether the population is discrete
• whether the population segment is significant to
  the species

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DPS purpose

• Not a tactic for subdividing a larger population
  that warrants listing throughout a larger range.

• DPS not used to list individual, fragmented
  populations which are at risk while leaving
  healthier populations unlisted

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Listing decisions

• Listing decisions are to be made based on
• the best scientific and commercial data available
  
• after conducting a review of the status of the
  species
• Factors include
• (A) the present or threatened destruction,
  modification, or curtailment of its habitat or
  range OR
• (D) the inadequacy of existing regulatory
  mechanisms.

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best scientific and commercial data available

• Commercial does not mean accounting for
  economic impact it means accounting for
  potential human impacts on the species listing
  process DOES NOT include economic factors.
• Available means just thatUSFWS not required to
  commission new studies
• Best science
• after conducting a review of the status of the
  species
• after taking into account those efforts, if any,
  being made by any State or foreign nation to
  protect the species

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International

• Listed as vulnerable on Red List
• Indicates that the polar bear is considered to be
  facing a high risk of extinction in the wild.
• Population size reduction of 30 met within three
  generations
• due to a decline in extent, occurrence, and/or
  quality of habitat.
• Appendix II of the Convention on the
  International Trade of Endangered Species (CITES)
• Species that are not necessarily now threatened
  with extinction but that may become so unless
  trade is closely controlled.
• A number of international treaties regarding the
  conservation of the polar bear

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THREATENED SPECIES

• A threatened species is one that is likely to
  become an endangered species within the
  foreseeable future throughout all or a
  significant portion of its range.

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THREATENED SPECIES

• A threatened species is one that is likely to
  become an endangered species within the
  foreseeable future throughout all or a
  significant portion of its range.

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Designating Critical Habitat

• With listing, to the maximum extent prudent
  and determinable designate any habitat of such
  species which is then considered to be critical
  habitat.

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Critical habitat

• Critical habitat is that which is essential to
  the conservation of the listed species
• Conservation is a much broader concept than mere
  survival - includes recovery
• Designating made on the basis of
• the best scientific data available
• after taking into consideration
• the economic impact,
• national security,
• and any other relevant impact.

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• Two main issues will likely be raised
• (1) the cost to protect the habitat itself,
  independent of the species, would be astronomical
  and
• (2) arctic sea ice is moveable and may disappear
  naturally with the seasons, making it hard to
  monitor and manage.

• Refusing to designate critical habitat is a
  fairly common practice because FWS finds it
  imprudent.
• April 1996 - July 1999 more than 250 species
  had been listed, yet Critical Habitat
  Designations had been made for only two.
• Presently only 1/3 of species have Critical
  Habitat

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Critique/Recommendation

• ESA be clarified by the legislature as to what
  prudent means.
• Courts should be more willing to create rules
  when the strike down FWS prudent
  determination.
• How can FWS know the full benefit of critical
  habitat when they rarely designate it?

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Takings

• Two types of legal actions can be made by
  petitioners if polar bear is listed

Section 9, relating to incidental takes
PRIVATE PARTIES Section 7, relating to no
jeopardy biological opinions when an action
requires federal permitting FEDERAL AGENCIES
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9 and 10

• Section 9 Unlawful to take within the U.S. or
  high seas

• Take - to harass, harm, pursue, hunt, shoot,
  wound, kill, trap, capture, or collect, or to
  attempt to engage in any such conduct.
• Harm - any act that actually kills or injures
  wildlife, including significant habitat
  modification or degradation where it actually
  kills or injures wildlife by significantly
  impairing essential behavioral patterns,
  including breeding, feeding or sheltering.

• Section 10 permit to take
• NMFS may permit any taking otherwise prohibited
  if such taking is incidental to, and not the
  purpose of, the carrying out of an otherwise
  lawful activity.

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Section 9 causation

• Proximate cause and but for causation not met.
• Cause-in-fact continuous, unbroken by
  intervening cause
• Jointly and severally liable only for
  substantially simultaneous acts of whole
  transaction
• Neither whole transaction (other polluters) or
  substantially simultaneous (polluters have come
  and gone and new will pop up)
• Proximate cause cause-in-fact foreseeable
• too attenuated

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Interagency Cooperation ( 7)

• Every agency must consult with FWS insure that
  any action authorized, funded, or carried out by
  an agency is not likely to jeopardize the
  continued existence of any threatened species.
• Jeopardize the continued existence - reduce
  appreciably the likelihood of both the survival
  and recovery of a listed species in the wild
• If an action jeopardizes the listed species, the
  agency has to suggest reasonable and prudent
  alternatives which wont jeopardize the species.

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Adverse Modification of Critical Habitat

• Applies to the habitat itself not to the species
  within the habitat.
• What is adverse modification?

• Regulations a direct or indirect alteration
  that appreciably diminishes the value of critical
  habitat for both the survival and recovery of a
  listed species
• Court a direct or indirect alteration of
  critical habitat which appreciably diminishes the
  value of that habitat for either the survival or
  the recovery of a listed species.

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Section 7 causation

• Proximate cause and but for causation may be met
  in two types of actions.
• Agencies approval of permits. Cumulative
  affect must be considered, bring all actions
  into each BiOp.
• Cause-in-fact continuous, unbroken by
  intervening cause
• U.S. amounts to nearly 40 of the worlds GHGs.
• Proximate cause cause-in-fact foreseeable
  not too attenuated
• No scientific determination will say that it is
  not foreseeable that GHGs are causing global
  warming.
• Is it too attenuated? A friendly judge would say
  no. Pulling the trigger on the gun, even though
  it is the bullet that kills.
• EPAs failure to list CO2 as criteria pollutant
  under CAA.
• Omissions are actions.
• It is within EPAs power to add CO2, but they
  fail to do so. Adding it would be for the
  public welfare as biological diversity is for
  the public welfare.
• The fact that others are doing the polluting does
  not amount to an intervening cause.

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Sec. 7 Exemptions

• 6 regular members of the Endangered Species
  Committee
• Exemptions are rareonly six exemption
  applications have ever made it to the Endangered
  Species Committee and, of those, only one
  exemption and one partial exemption have been
  granted.
• There is also a national security exemption, but
  none has ever been granted or applied for.

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• An exemption applicant must show
• Completed consultation in good faith and made a
  reasonable effort to consider modifications and
  prudent alternatives which would not result in a
  jeopardy
• An exemption shall be granted when the Committee
  finds that
• there are no reasonable and prudent alternatives
  to the agency action         
• the benefits of such action clearly outweigh the
  benefits of alternative courses of action
  consistent with conserving the species or its
  critical habitat, and such action is in the
  public interest
• the action is of regional or national
  significance and
• That there was no irreversible or irretrievable
  commitment of resources
• Then, Committee must require reasonable
  mitigation and enhancement measures

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Likely Outcome / Changes Needed

• Polar bear will be listed. The international
  protections alone show that it warrants listing.
• Critical habitat will not be listed.
• Requiring Sec. 10 permits for individual
  polluters not likely as causation is too
  attenuated.
• ESA was meant to stop individuals from being able
  to take listed species while there is a limit to
  causation, major polluters should be responsible
  for their actions.

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• Finding a Sec. 7 violation more likely if they
  groups can show that the U.S. pollution is
  ultimately the cause of the shrinking ice.
• ESA can be read so that this relationship is not
  too attenuated and courts should read it that
  way.
• A Sec. 7 exemption, if causation is found, would
  have a chance of being granted, perhaps under the
  guise of national security. However, this could
  result in some compromises.
• If exempted, this should be fought in court under
  the claim that the government did not try to come
  into compliance with the ESA in good faith and
  that reasonable alternatives do exist.
• Theres always the awwww factor that policy
  makers must consider.

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• QUESTIONS?