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.
Dan Rohlf, CPR Member Scholar; Professor of Law, Lewis and Clark Law School. Bio.
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