Dorf on Law

Mostly law-related musings by Cornell Professor Michael Dorf and some of his lawyer/professor friends

Saturday, December 30, 2006

Polar Bears & Ice Shelves

There is something pathetic about the Interior Dept's proposed listing of polar bears as a threatened species while taking no position on whether the threat to polar bears is due to human-induced global warming. What greater threat can there be to polar bears? Is there a suddenly expanding market for polar bear meat? (If so, might cloned polar bear meat be the solution? See yesterday's entry.) No, of course not. In fact, Interior's polar bear press release identifies melting habitat as the principal threat to polar bear survival. That point was dramatically confirmed by the announcement yesterday that a 25 square-mile Arctic ice shelf broke free from the coast of Ellesmere Island in August 2005.

Despite acknowledging the proximate threat to polar bears, however, Interior
denies any ability to address the ultimate cause of the threat, greenhouse gas emissions. The press release states:

While the proposal to list the species as threatened cites the threat of receding sea ice, it does not include a scientific analysis of the causes of climate change. That analysis is beyond the scope of the Endangered Species Act review process, which focuses on information about the polar bear and its habitat conditions, including reduced sea ice. However, climate change science and issues of causation are discussed in other analyses undertaken by the Bush Administration. The administration treats climate change very seriously and recognizes the role of greenhouse gases in climate change.

This is a masterpiece of misdirection. The two federal agencies with primary responsibility for environmental protection are Interior and EPA. Interior says that the Endangered Species Act only gives it authority to address species-level threats, while EPA says that the Clean Air Act does not authorize it to regulate greenhouse gases because they are not "pollutants." In what sense then does the administration treat climate change seriously? Suppose the Administration is right that neither the Endangered Species Act nor the Clean Air Act currently grants Interior or EPA the authority to regulate greenhouse gas emissions. Where are the Administration's efforts to urge Congress to enact new legislation granting authority to enact regulations commensurate with the problem? Where is the diplomatic initiative to secure worldwide cooperation in reducing greenhouse gas emissions?

1 Comments:

  • At 12:36 PM, Blogger Jamison Colburn said…

    A masterpiece in misdirection indeed! I am not holding myself out as an Endangered Species Act expert, mind you, but to my knowledge there's never been a listing where at the proposal stage the agency has said it lacks any authority to address the principal threat to the species. Moreover, I don't think it is accurate to say that greenhouse gas emissions and reversing the greenhouse effect are "beyond the scope" of the ESA. The Act (and the regs, see 50 CFR 402.01(d)) defines "conserve" in the duties owed to listed species under Sections 7 and 9 to mean "the use of all methods and procedures that are necessary to bring any endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary." Section 7 levies those duties on "[e]ach Federal agency" and Section 9 (on private conduct) specifically extends its reach to "any person subject to the jurisdiction of the United States." On the other hand, it does seem to be the same strategy the Administration has taken toward the Clean Air Act and GHGs: calculated to maximize their chances of garnering deference from a supine reviewing court.

     

Post a Comment

<< Home