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To: Professor Knudsen


From: Exam Number #8247
Re: Analysis of Discussion Problem #2 Polar Bear ESA
Date: March 11, 2014

Introduction

Polar bears are mammals that have evolutionarily adapted to, and now are completely
reliant upon, sea ice for their survival. During the past several decades, the amount of sea ice in
the Arctic has been declining. Consequently, the population of polar bears has been declining.
The May 2008 decision of the U.S. Fish and Wildlife Service (FWS) to list the polar bear as a
threatened species under the Endangered Species Act (ESA) prompted challenges from many
parties, some claiming the FWS listing did not provide sufficient protection, and others claiming
that no Endangered Species Act listing was warranted. The FWSs stance, that the lack of an
imminent danger to their extinction rules out -- by definition -- an Endangered Species listing,
was challenged. Those that want a higher degree of protection note that the decline of the sea ice
is not uniform and argue that a distinct population segment should be established so that the
most threatened polar bears might be afforded the higher level of protection of an Endangered
Species. What is the best available science, required as the basis of an Endangered Species
Act ruling, is a hugely complicated factual issue, and complicating the decision-making process
further are the facts that Polar Bear species live in several countries and that any protection
afforded them would likely require limitations on the use, potentially a Constitutionally
permitted taking, of privately owned property under the Environmental Protection Act.

Analysis

The Fish and Wildlife Service (FWS) listing of the polar bear as a threatened species
was challenged by the Center for Biological Diversity (CBD) under the Listing Rule of the
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Endangered Species Act (ESA), 16 U.S.C. 1531 et seq., and the Administrative Procedure Act
(APA), 5 U.S.C. 551 et seq. The CBD claimed that the listing decision was arbitrary and
capricious and an abuse of agency discretion.
A threshold issue raised by the FWS rationale for the threatened listing, was that an
endangered listing requires that the species be in imminent danger of extinction, The ESA
defines an endangered species as one in danger of extinction throughout all or a significant
portion of its range and a threatened species as one likely to become an endangered species
within the foreseeable future throughout all or a significant portion of its range in 16 U.S.C.
1532. Based on these definitions, the FWS has interpreted the separation between endangered
and threatened to be a question of imminence. Although the word imminent does not appear in
the ESA definitions, this plain-language reading of the statute shows that to be the intent of
Congress in passing the ESA. Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc.
[pg. 199] established what is now referred as the Chevron two-step test decision-making
process, which the FWS relies upon to support its interpretation. The FWS is the proper agency
to be making this statute interpretation as it is tasked with the listing, and the statute is
ambiguous because there is no threshold threat of extinction defined by Congress in its ESA
definitions, so the FWS acted within its proper role in making its decision. Therefore the FWS
requirement of imminence passes the initial test of the Chevron two-step test. Under the
second step, the courts then must defer to the agencys expertise so long as the agency
interpretation is reasonable.
While it cannot be denied that if the sea ice continues to decline until it no longer exists,
the polar bear will no longer have its habitat, we cannot predict when or if this will happen or
whether the polar bear will evolutionarily adapt to the change. Therefore, in the case of the polar
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bear listing, the agency interpretation is reasonable, since without this distinction being taken
into account, no real, absolute difference exists by which it could make a decision between
endangered and threatened.
By analyzing the listing decision as a factual issue under which a continuing climate
change that eliminates all sea ice without current steps to prevent it is assumed, the CBD
argument is that the polar bears extinction might already be foregone conclusion based on the
scientific evidence presented. As presented in the U.S. District Court Record, according to some
plaintiffs, mainstream climate science shows that the polar bear is already irretrievably headed
toward extinction throughout its range [pg. 2]. By this argument, the polar bear deserves an
endangered listing. Without being listed as endangered, the polar bear faces the sure loss of
habitat and is threatened to the point of extinction by the inadequacy of existing regulatory
mechanisms.
CBD also raises the argument that the FWS should have listed polar bear populations as
distinct population segments (DPS). This action would benefit the polar bears by providing more
protection in areas where the bears might be more vulnerable. Because of simple differences in
habitat, models included in the U.S. District Court Record projected differences of 30 years in
extinction times for bears in different regions [pg. 7]. Giving more protections to the bears in
more imminent danger of extinction would help protect the species. Also, using the DPS listing
would aid CBD in pushing climate change legislation forward. By receiving an endangered
listing even for just a smaller population of polar bears, CBD can point to the damaging impacts
of greenhouse gas emissions from nearby emission sources on the endangered polar bears and
seek rulings to limit greenhouse gas emissions in order to limit the impacts of climate change.
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The FWS, in its listing ruling, did consider whether any distinct population segments
exist. The noted the ecoregions defined in the scientific work by the U.S. Geological Survey are
based on different ice types rather than true biological discreteness of polar bear populations. On
the other hand, the international Polar Bear Specialist Group identified nineteen polar bear
populations located within five countries in the ice-covered regions of the Northern Hemisphere
as reported in the U.S. District Court Record [pg. 3]. While reasons may exist for dividing the
polar bears into these groups, they are likely geographical. No scientific evidence was presented
to suggest that the different polar bear groups could no longer intermix.
In order for a subset of a particular species to be listed as a DPS, the subset must meet
both the significance and the discreteness criteria. According to the science available, the polar
bears living in the Alaskan artic are not discrete in terms of either behavioral patterns or any
other biological characteristics. Therefore the CBD argument, based on the different rates of
decline of polar bears in different ecoregions uses an irrelevant biological difference. In addition,
Congress mandated that the DPS classification be used sparingly and only when the biological
evidence indicates that such action is warranted [pg. 793]. This guideline from Congress takes
away much of the ambiguities previously present. For any remaining ambiguity in the use of the
DPS classification, we defer to the agencys discretion. As shown in the Defenders of Wildlife v.
Salazar case, we cannot subdivide species for convenience or policy reasons, so in this case, we
must list the polar bears at the highest level possible [pg. 796].
However, the CBD is not completely foreclosed from arguing that the U.S. Geological
Survey was of ice types, not of distinctions between polar bears related to where they live.
Additional evidence provided by the Polar Bear Specialist Group on their science behind the 19
polar bear populations is needed. Even minor differences of behavior, genetics and life history
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parameters might be observed in the different populations. This should have led to further
research by the FWS, the agency responsible for determining whether distinct population
segments (DPS) exist before making its ruling.
The Joint Plaintiffs argue that the polar bear does not warrant any listing under the ESA
due to the high degree of uncertainty associated with the science in the administrative record.
Because even the International Panel on Climate Change (IPCC), the authorities on climate
change science, reported that complicated systems like the Artic are inherently unpredictable
and have high scientific uncertainties, the Joint Plaintiffs argue that there was not a strong
enough case present to predict the continued decline in sea ice and list the polar bear as
threatened [Discussion Problem Outline]. This issue can only be resolved using the best available
science and the administrative record. Ultimately, the agencys decision to list the polar bear can
be upheld if it takes the best available science into account in the administrative record in a
clearly logical way following the specific statutes and purposes set forth by Congress. As long as
FWS addresses and acknowledges the uncertainty present in the scientific data used to make its
listing decision, the threatened listing can be read in light of this and stand as a reasonable action.
Unless the Joint Plaintiffs are able to show an actual contradiction in the science reported, the
agencys decision correctly used the best available science.
With the polar bear listed as a threatened species, it becomes subject to the Section 9
Take Prohibition of the ESA. Therefore, specific actions committed by any person against the
polar bear are subject to the prohibitions of Section 9. Any actions that would take the polar
bear are punishable as criminal violations if a permit is not acquired [pg. 838]. Therefore, even if
a project is on private property and does not require any federal approval, the project will still
need to apply for an incidental take permit if any polar bears may be harmed. If, for example, an
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oil project does require federal approval in Alaska, then it is a major federal action triggering the
National Environmental Policy Act (NEPA) and an Environmental Assessment (EA) or and
Environmental Impact Statement (EIS). As part of this analysis, consequences to the polar bears
will be studied, and the agency will decide on whether or not to issue an incidental take permit.
These decisions can later be challenged either under the Administrative Procedure Act (APA) or
as part of the NEPA citizen suit provision.
Unfortunately, the main danger the polar bear faces is not from individual actions in their
arctic habitat as prevented by the ESA but rather from the overall effects of climate change. As
greenhouse gas levels rise and global temperatures raise, the polar bears habitat vanishes.
According to the best available science, many polar bears will die as a consequence and the
species will face endangerment and extinction. Because the harm against polar bears is not a
simple local effect, no past cases or legislation can guide decisions on how to protect the polar
bear from climate change. The USGS 2008 memorandum stated that it is currently beyond the
scope of the existing science to identify a specific source of CO2 emissions and designate it as
the cause of specific climate impacts in an exact location. For this reason, any taking of polar
bears as a result of habitat loss due to climate change is impossible to hold against a specific
individual. Hypothetically, by driving my car to campus, I am releasing greenhouse gases and
partially responsible for melting ice in the arctic and harming polar bears. Obviously, it is
impossible and ridiculous for every driver to be faced with a criminal violation under Section 11
of the ESA, but then how can polar bear taking be prevented?
The intent of Congress in the ESA is clear protection of endangered and threatened
species is the highest priority. The Supreme Courts interpretation of the ESA in Tennessee
Valley Authority v. Hill reinforced this point as they decided that Congress intent was
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unambiguous: protection is the clear purpose of the ESA [pg. 819]. The secondary purpose of the
ESA is recovery. Both of these purposes are important to consider in the polar bear discussion
problem. Because Congress so clearly placed protecting endangered species as the highest
priority, all actions must be taken to protect them. If the polar bear is eventually listed as
endangered, parties like CBD will likely sue agencies under the APA for arbitrary and capricious
decision making in any agency action to approve a permit that involves greenhouse gas
emissions. Especially if a clear scientific story can be painted connecting greenhouse gas
emissions to ice shrinking in the arctic, the CBD may be able to show that this agency action is
endangering the polar bear by habitat destruction. Even though the ESA Section 9 taking
prohibition raises very complicated issues for other agencies when Section 7 consultations are
required in future permitting actions under the Environmental Protection Act (EPA), that is the
inevitable consequence of FWS properly exercising its statutory mandate under the ESA to list
the polar bear as a threatened species.
Polar bears live in many northern countries including Russia, Canada, and the United
States. Because polar bears cross international lines, truly protecting them requires international
agreement. If we want to protect polar bears, we need to pass international treaties preventing
their taking. This still leaves us the problem that polar bears are only protected from individual,
immediate taking. Greenhouse gases are emitted all over the world, so even a treaty involving
just nations with polar bear populations would not prevent habitat destruction and polar bear
harm.
Should the polar bear be the stalking horse for international greenhouse gas limitation
treaties? If its demise as a species is the inevitable consequence of the disappearance of sea ice
in the arctic, should the preservation of that sea ice be the standard by which an international
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treaty that would reverse the effects of climate change is judged? The U.S. Congress has made
its affirmative determination with respect to the protection of the polar bear in the ESA, and the
U.S. Supreme Court has upheld it in Tennessee Valley Authority v. Hill [pg. 819]. If the Snail
Darter was more important than the worth of a dam already constructed, one can only conclude
that the ESA would require protection of the polar bears regardless of the economic impact of the
enormous changes required to reduce the effects of fossil fuel emissions. Although Congress has
spoken in the ESA, it must also be noted that Congress also decided its grand policy needed an
exception when the Snail Darter prevented the operation of an already built dam. Therefore, it
would seem that, regardless of the correctness of the CBD position as an interpretation of the
ESA that the polar bear is not just threatened, but is endangered, it is unlikely that an
international treaty that would protect the polar bear from extinction by reducing greenhouse gas
emissions would be ratified by all the countries that produce such gasses (not just the ones with
polar bear populations) even if it were politically possible for one to be proposed by the United
States.
Ultimately, the listing of the polar bear as threatened or endangered under the ESA is
unlikely to make a difference as to whether the species becomes extinct unless extremely
significant recovery programs are put into place. The climate change that is causing the decline
in the Arctic sea ice is also affecting many other ecosystems. Without enough political will
internationally to significantly reduce the effects of current and projected future fossil fuel
consumption, the best hope for the polar bear is that it can evolutionarily adapt to become the
species from which it evolved the brown bear.