Interior Secretary Dirk Kempthorne just announced that the Department of the Interior is going to list the polar bear as threatened under the Endangered Species Act. For the first time in the history of the act, bureaucrats are using the threat of global warming as the reason for listing a well known species — though Kempthorne tried to downplay the global warming link.
The fact that the number of polar bears has more than doubled in recent decades hardly seems to matter. Indeed, this listing by the Bush administration has less to do with the bears and more to do with backdoor implementation of a climate-change policy that is anti-energy.
Congress enacted the Endangered Species Act in 1973, a time of great concern over the fate of the bald eagle, among other species. The law authorizes the Interior Department to create a list of species considered endangered or threatened. Once a species is listed, the statute requires Interior, working with other federal agencies, to formulate a recovery plan that includes any and all actions deemed necessary to protect the species and its habitat.
Notwithstanding the laudable goal of protecting species, the Endangered Species Act represents a flawed approach that only has gotten worse over three decades of judicial interpretation.
The threshold for listing is not hard to meet. Some 1,300 species currently are listed as either “endangered” or “threatened” (a lesser status than “endangered”). Once a species makes the list, the “critical habitat” designated for it is defined broadly to include vast areas.
The federal government’s species recovery plans often contain onerous restrictions on economic activity inside the habitat — and in some cases outside it as well — trumping property rights in the process. Environmental activists routinely sue over the adequacy of these recovery plans, to force Interior to add more restrictions.
Although highly successful in violating private property rights and hampering economic activities, the statute has done surprisingly little to protect species. In nearly 35 years, a very small percentage of listed species actually have recovered or even shown any improvement.
Experience has shown that a Washington-run crackdown on economic activities in the vicinity of these species is not the best way to help them. Reform of the Endangered Species Act was badly needed even before this polar bear episode began.
Ulterior motives likely were a big part of the lawsuit to list the bear, which led to this decision by Interior. For several years now, global warming has been the top issue among environmentalists, yet nothing has happened legislatively. In part, this is because of the prohibitive costs on cracking down on the fossil fuels that are blamed for warming but also provide 85 percent of our nation’s energy.
For this reason, activists have tried to use existing authority to force a regulatory end run around inaction by Congress. Litigation under the Endangered Species Act is one avenue for doing so.
As noted, the requirements for listing a species never have been particularly rigorous. And so past and predicted reductions in summer sea ice in the Arctic, which the bears rely upon, was deemed sufficient by Secretary Kempthorne.
The decision is to list the polar bear under the lesser status of “threatened” rather than “endangered,” but this status nevertheless triggers stringent measures.
The first victim of the polar bear’s listing will be oil and natural gas production in Alaska. The listing likely will put an end to chances of opening up a small portion of the Arctic National Wildlife Refuge (ANWR), estimated to contain 10 billion barrels of oil — nearly 15 years’ worth of imports from Saudi Arabia.
Legislative proposals to open ANWR have faltered in Congress, but the polar bear listing could be the nail in the coffin. Other promising onshore and offshore areas, with cumulatively greater potential than ANWR, also will be off limits.
Alaska is America’s last best frontier for domestic oil and natural gas. Closing off this potential will add to energy prices for decades to come, as well as increase our reliance on imports.
The fact that extensive oil drilling has been under way for decades in Prudhoe Bay and elsewhere in Alaska, with negligible impact on polar bears, should carry weight under the law. But it probably will not.
For the record, the state of Alaska was dead set against the listing, in part because state officials have demonstrated that energy production and bear protection can go hand in hand.
Kempthorne argues that Interior’s regulation allows continued energy production in Alaska. But environmental activists are certain to bring court challenges against any such efforts to accommodate economic interests.
Worse yet, the activists’ rationale for listing the polar bear was that carbon dioxide from burning fossil fuel contributes to global warming and thus harms the bears. So now the Bush administration, through the Endangered Species Act, could give environmental litigators a new way to go after any proposed power plant, factory, or just about any fossil energy-producing or energy-using entity in the U.S.
These are precisely the kinds of sweeping controls the environmental activists had hoped to achieve by now, through climate-change legislation or international treaty. Kempthorne essentially said he hoped the law never would be used in this manner. However, that will be for federal judges to decide.
Given the lack of any real threat to polar bears, and the decidedly mixed track record of the Endangered Species Act in helping species, there is reason to believe this listing won’t benefit the polar bears. But there’s plenty of reason to believe it will hurt America’s economic future.
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