Fighting climate change - legal victory!

Hey, great news on climate change!  So nice to be able to pass on some environmental good news:

Amid concerns that global warming is melting away the icy habitats where polar bears live, the federal government is reviewing whether they should be considered a threatened species.

What is so cool about this?  This is the beginning of an amazing effort to open up new avenues for fighting climate change using the Endangered Species Act.  

To the extent that global warming threatens the polar bears, and to the extent that government activities (or activities they regulate) cause global warming, the government would have to stop activities that cause global warming.  (After a decade of legal battles, but still!)

How Did All This Begin?

Climate change is destroying the polar bears' habitat and threatening their survival.  So, on February 15, 2005, the Center for Biological Diversity submitted a petition [PDF] (joined by Greenpeace and the NRDC) to have the polar bear listed.  This began a long period of...

Waiting and Waiting

Days, weeks, months passed.  The 90-day deadline for an initial response meandered by.  

This is not surprising, given that the U.S. Fish & Wildlife Service systematically delays listing species and given that nearly 300 species are waiting to be listed.  

They claim this is because they're short-staffed and low on budget.  Hopefully this year's budget will be different??  No, because as melvin posted, the Bush Budget Continues to Shortchange Endangered Species Protections.

Though the Endangered Species Act's fundamental purpose is to protect and recover species on the brink of extinction, the president's budget would cut endangered species recovery by $7.6 million below 2006 levels.

This year the administration seeks $9.2 million in additional funds to "clear the backlog" of oil and gas drilling permit applications. The backlog of hundreds of species awaiting endangered species listing decisions and critical habitat designations, however, is not as fortunate in the president's budget. The endangered species listing account should receive at least $30 million to address both the backlog and the current year's workload. However, the president's budget proposes funding the listing account at only $17.8 million, $340,000 less than was requested last year.

So, in late December, when the no-excuses, absolutely-legally-binding deadline for a 12-month finding (Feb 15, 2006) was coming into sight, the Center for Biological Diversity, Greenpeace, and the NRDC sued.  (The complaint is here [PDF]).

And today, a whole week in advance, the Service did, well, the bare minimum required!  They released the initial response they should have issued in 90 days.  (But hey, who's complaining?  And, in truth, the bare minimum would have been to turn the petition down flat.  But can you imagine the Greenpeace press releases then?)

But it's not often that environmental victories happen!  So let's put aside the hard feelings, and...

Celebrate This Glimmer Of Hope

From the Fish & Wildlife Service's press release:

The U.S. Fish and Wildlife Service today announced that a petition to list the polar bear (Ursus maritimus) as threatened under the Endangered Species Act presents substantial scientific and commercial information indicating that listing the polar bear may be warranted.

What's up next?

As a result, the agency is initiating a status review of the polar bear to determine if the species should be proposed for listing and opening a 60-day public comment period, to follow publication in the Federal Register on Thursday, February 9th, in order to give all interested parties an opportunity to provide information on the status of the polar bear throughout its range.

Did I mention that they are about to invite public comment?

You can read the finding, and obtain information on how to provide comments, in the Federal Register after February 9th, or by contacting the Service's Marine Mammals Management office at [phone].

Of course, the Service could always release a negative finding after all this study, so this is only the first glimmer of hope for the polar bears.

At the conclusion of the status review, a "12-month finding" [you know, the same one they were supposed to release next week] will be published announcing the Service's determination.  If the listing is believed to be warranted, the Service will publish a proposed rule to list the species at the end of the 12-month process, unless the action is precluded by the need to undertake higher priority actions on other species.

Keep an eye on the Center for Biological Diversity's polar bear page for continuing updates.

But if the polar bear is added to the endangered & threatened species list, it will be an exciting start toward creating new legal avenues to fight climate change.  

From the Center for Biological Diversity:

Listing under the United States Endangered Species Act ("ESA") will provide broad protection to polar bears, including a requirement that United States federal agencies ensure that any action carried out, authorized, or funded by the United States government will not "jeopardize the continued existence" of polar bears, or adversely modify their critical habitat.

In other words, as I said above, to the extent that global warming threatens the polar bears, and to the extent that government activities (or activities they regulate) cause global warming, the government would have to stop activities that cause global warming.

This would be excellent. And not a moment too soon.

The Second Species In This Strategy

Though polar bears seem much more exciting, they are actually the second prong in the strategy to force action on global warming using the Endangered Species Act.  

Look for some action on this in mid-May.  Before the polar bear is listed, the elkhorn (Acropora palmata) and staghorn (A. cervicornis) corals will already be listed as threatened.  (As you probably know, global warming causes coral bleaching.)  The proposed rule [PDF] came out on May 9, 2005, and the final rule can be issued no longer than 12 months after that.

So, just like the polar bears, if the corals are listed, a new legal avenue will exist to require the government to consider whether an activity worsens global warming in the course of regulating those activities.

Here's how the Center for Biological Diversity explains their strategy:

Perhaps most importantly, because global climate change is largely driven by greenhouse gas emissions, the listing of these corals would require greenhouse-gas emitting industries to consider the well-being and recovery of these corals before they are given permits to pollute.

The Looming Threat

However.  The legal basis for all of these strategies may disappear in the meantime.  Melvin has written many excellent diaries on the current threat to the Endangered Species Act -- Crapo's Senate Bill S.2110.  Or you can check out my introduction to the topic.

The bottom line is that Crapo's bill, should it pass, will be combined with Pombo's significantly worse bill in a committee including Pombo himself (R-CA) and Inhoffe (R-OK) -- both of whom have scores of zero from the League of Conservation Voters.

Even if enough of the endangered species act remained to force action -- which is questionable -- these could be the very last species activists could use to force action by the government.  That's because there would no longer be any deadlines to list species.  Those 60-day and 12-month deadlines would be gone, replaced only by the government's foot-dragging, because according to the Center's analysis, Crapo's bill:

Makes Species Listing Completely Discretionary (pages 18-19)

As with habitat protections, the Crapo bill would eliminate mandatory timelines to place species on the endangered list, instead giving the Secretary of Interior complete discretion to prioritize listings. Even then the Secretary is not required to implement her schedule and citizen groups are banned from seeking court orders to implement any listing schedules or deadlines. All existing court orders to list species would be overruled by the bill.

Help Out

So, please, contact your Senators!  Ask them their position on S. 2110.  (It is currently in the Finance committee.)  Implore them to oppose it.  Explain why.  For some ideas of the magnitude of the crisis, check out this compilation of news stories on species extinction or check out my recent diary linking to news reports that climate emissions absolutely must peak in the next 20 years or (according to "scientists," as reported by Reuters) we will start to "watch the planet spiraling towards destruction."

You may also wish to send some thanks (monetary or otherwise) to the Center for Biological Diversity.  They are an awesome group.  Not one of those groups with a lot of Class-A office space or a large internal bureaucracy, they make major impacts on a tiny budget.  My (vague and possibly slightly inaccurate) understanding is that their early founders were some bulldozer-chaining Earth First! activists who were tired of getting arrested and decided to go to law school.  So, they take the hardline stances other groups shy away from, and basically act as the punks of the environmental world.  They could use your help.

Update:Someone sent me a link to a polar bear growl.  Click here to hear it.