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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.


Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.


Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« FWS reopens comment period on San Diego thornmint critical habitat | Main| Rio Grande Cutthroat trout listing is warranted, but precluded, by other priorities »

Secretary Kempthorne announces polar bear bear listing, but explanations infuriate climate change thinkers

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73 Federal Register ___ (May 14, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range; Final Rule).

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine threatened status for the polar bear (Ursus maritimus) under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.). Polar bears evolved to utilize the Arctic sea ice niche and are distributed throughout most ice-covered seas of the Northern Hemisphere. We find, based upon the best available scientific and commercial information, that polar bear habitat—principally sea ice—is declining throughout the species’ range, that this decline is expected to continue for the foreseeable future, and that this loss threatens the species throughout all of its range. Therefore, we find that the polar bear is likely to become an endangered species within the foreseeable future throughout all of its range. This final rule activates the consultation provisions of section 7 of the Act for the polar bear. The special rule for the polar bear, also published in today’s edition of the Federal Register, sets out the prohibitions and exceptions that apply to this threatened species.

In addition, in a related rulemaking document, the Department of Interior also adopted additional restrictions pursuant to the ESA  Section 4(d).  Specifically, DOI adopted "existing conservation regulatory requirements under the MMPA and CITES as the appropriate regulatory provisions for this threatened species. Under this rule, if an activity is authorized or exempted under the MMPA or CITES, no additional authorization will be required. But if an activity is not authorized or exempted under the MMPA or CITES and the activity would result in an act that would be otherwise prohibited under 50 CFR 17.31, the protections provided by the general threatened species regulations will apply."

Photos of sea ice coverage in arctic in 1979 and 2007, from Department of Interior

To continue this ESAblawg posting...


   Interior received over 670,000 public comments on this rule, ordered by a U.S. District Court Judge to be completed by May 15, 2008.   At a 2:30 pm press conference today, Secretary Dirk Kempthorne announced that the polar bear would be listed as a threatened species, yet the announcement did not satisfy environmentalists.  Indeed, both the Secretary's statements -- referring to the ESA as "perhaps the least flexible law Congress has ever enacted" -- and the Department of Interior's home page,, were absolutely unequivocal and direct in refuting any suggestion that the listing decision would become a tool for addressing climate change and other environmental issues.  On the web, DOI stated that "Secretary Kempthorne Announces Decision to Protect Polar Bears under Endangered Species Act Rule will allow continuation of vital energy production in Alaska."

   In his announcement speech, Secretary Kempthorne clearly stated that his announcement reflected White House views as well.  "The most significant part of today’s decision is what President Bush observed about climate change policy last month.  President Bush noted that '“The Clean Air Act, the Endangered Species Act and the National Environmental Policy Act were never meant to regulate global climate change.'  The President is right.  Listing the polar bear as threatened can reduce avoidable losses of polar bears.  But it should not open the door to use the ESA to regulate greenhouse gas emissions from automobiles, power plants, and other sources.  That would be a wholly inappropriate use of the Endangered Species Act.  ESA is not the right tool to set U.S. climate policy.  The Endangered Species Act neither allows nor requires the Fish and Wildlife Service to make such interventions."


   While the listing decision supported the need to protect the polar bear, it also repeatedly refuted the claims that the ESA would be used as a tool to address  climate change, allegedly by triggering a biological opinion to evaluate federal actions and their greenhouse gas (GHG) footprints and effects.  An additional guidancedocument by FWS further  disputes this concept.  Explaining this distinction, the rule indicates that climate change science is too uncertain to draw a connection between individual actions and overall climate impacts.  For example, the rule states that while climate change models do represent the best available information for purposes of the listing decision, they also suffer from significant uncertainties due to the complexity of the issues, non-linear and natural variability in the chaotic arctic sea ice system patters, and uncertainties in air temperature and precipitation.  This analysis ultimately laid a foundation for a separate section of the rule entitled Regulatory Implications for Consultations under Section 7 of the Act, which states, in partinent part, as follows:

   The significant cause of the decline of the polar bear, and thus the basis for this action to list it as a threatened species, is the loss of arctic sea ice that is expected to continue to occur over the next 45 years. The best scientific information available to us today, however, has not established a causal connection between specific sources and locations of emissions to specific impacts posed to polar bears or their habitat...
   Recognizing the primacy of the Federal action agency’s role in determining how to conform its proposed actions to the requirements of section 7, and taking into account the requirement to examine the “effects of the action” through the formal consultation process, the Service does not anticipate that the listing of the polar bear as a threatened species will result in the initiation of new section 7 consultations on proposed permits or licenses for facilities that would emit GHGs in the conterminous 48 States. Formal consultation is required for proposed Federal actions that “may affect” a listed species, which requires an examination of whether the direct and indirect effects of a particular action meet this regulatory threshold. GHGs that are projected to be emitted from a facility would not, in and of themselves, trigger formal section 7 consultation for a particular licensure action unless it is established that such emissions constitute an “indirect effect” of the proposed action. To constitute an “indirect effect,” the impact to the species must be later in time, must be caused by the proposed action, and must be “reasonably certain to occur” (50 CFR 402.02 (definition of “effects of the action”)). As stated above, the best scientific data available today are not sufficient to draw a causal connection between GHG emissions from a facility in the conterminous 48 States to effects posed to polar bears or their habitat in the Arctic, nor are there sufficient data to establish that such impacts are “reasonably certain to occur” to polar bears. Without sufficient data to establish the required causal connection—to the level of “reasonable certainty”—between a new facility’s GHG emissions and impacts to polar bears, section 7 consultation would not be required to address impacts to polar bears...
   At present there is a lack of scientific or technical knowledge to determine a relationship between an oil and gas leasing, development, or production activity and the effects of the ultimate consumption of petroleum products (GHG emissions). There are discernible limits to the establishment of a causal connection, such as uncertainties regarding the productive yield from an oil and gas field; whether any or all of such production will be refined for plastics or other products that will not be burned; what mix of vehicles or factories might use the product; and what mitigation measures would offset consumption. Furthermore, there is no traceable nexus between the ultimate consumption of the petroleum product and any particular effect to a polar bear or its habitat. In short, the emissions effects resulting from the consumption of petroleum derived from North Slope or Chukchi Sea oil fields would not constitute an “indirect effect” of any federal agency action to approve the development of that field.

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