Use of the Polar Bear Listing to Force Reduction of Greenhouse Gas Emissions: The Legal Arguments

Use of the Polar Bear Listing to Force
Reduction of Greenhouse Gas Emissions:
The Legal Arguments
Robert Meltz
Legislative Attorney
American Law Division
Summary
On May 15, 2008, the Fish and Wildlife Service listed the polar bear as a
threatened species under the Endangered Species Act (ESA). At the same time, it
published a “special rule” limiting the application of ESA prohibitions to activities
affecting the bear. The listing and special rule attracted attention due to the likelihood
that the listing will be used as a legal basis to attempt to force reductions of greenhouse
gas emissions from sources nationwide. At least two arguments might be made. First,
the ESA prohibition of “takes” could be argued to be violated by major greenhouse gas
sources. The special rule seeks to bar this argument, but has been challenged in court.
Second, the ESA might require consultation with the Fish and Wildlife Service before
a federal agency can authorize a major source of greenhouse gases, though the Service
argues that current science does not support an adequate causal nexus between specific
sources of greenhouse gases and specific effects on polar bears.
On May 15, 2008, the deadline imposed by court order, the Fish and Wildlife Service
(FWS) listed the polar bear as a threatened species under the Endangered Species Act
(ESA).¹ At the same time, it published an ESA “special rule” limiting the application of²
ESA prohibitions to activities affecting the bear. The listing and special rule sparked
debate not only because of the polar bear’s charismatic qualities. It was widely known
that the Center for Biological Diversity had petitioned the FWS to list the polar bear in
2005 in the hope that listing would provide a legal basis for forcing reduction of
greenhouse gas (GHG) emissions throughout the country, to combat climate change.
Thus, the consequences of the listing, many thought, could be vast.

¹ 73 Fed. Reg. 28212 (May 15, 2008). See generally CRS Report RL33941, Polar Bears: Listing
Under the Endangered Species Act, by Eugene Buck, M. Lynne Corn, and Kristina Alexander.
² 73 Fed. Reg. 28306 (May 15, 2008).

The legal arguments, when they are eventually made, will presumably run like this.
GHG emissions contribute to climate change. Climate change has produced
disproportionate warming in the Arctic. That warming has already reduced the extent of
Arctic sea ice, and will continue to do so in the future. Polar bears depend on sea ice for
breeding, foraging, and travel. Thus, by diminishing the polar bear’s essential habitat and
jeopardizing the species, GHG emitters anywhere in the United States now implicate the
demands of the ESA — particularly sections 9 and 7, as follows.
ESA Section 9: the “Take” Prohibition
ESA section 9 makes it unlawful for any person to “take” an animal listed as
endangered under the ESA.³ “Take” is defined broadly by the ESA to include “harm” to
an endangered animal (or plant).⁴ And “harm,” critically for the climate change argument
above, has been administratively defined to include indirect harm to listed species
members through certain significant habitat modifications.⁵ Thus, at first glance an
argument appears to exist that because a significant GHG emitter contributes to climate
change, which melts the polar bear’s sea-ice, the emitter violates the section 9 “take”
prohibition. If blessed by the courts, this argument would require a significant GHG
emitter to obtain an “incidental take permit,” allowing incidental takes of polar bears after
the emitter submits a conservation plan and the FWS finds that the applicant will
minimize the impacts of such taking.⁶
This argument has some flaws. First, section 9, as noted, prohibits “takes” only as
to endangered species, while the polar bear was listed as threatened. Here matters
become more complex. By general rule, the FWS long ago extended the section 9 “take”
prohibition to threatened species as well.⁷ Threatened species with atypical management
needs, however, are subject instead to “special rules.”⁸ The FWS has great flexibility in
writing special rules, because the ESA requires only that regulations protecting threatened
species be “necessary and advisable to provide for the conservation of such species”⁹ —
not that they be the same as the act’s protections for endangered species. When the FWS
listed the polar bear as threatened, it simultaneously issued a special rule for the species,
also known as a “4(d) rule” after the relevant ESA subsection.
The polar bear 4(d) rule has been controversial. The rule narrows the section 9
“take” prohibition that normally would apply through the general rule above, by two
exceptions. Only one is substantially relevant to climate change. It exempts from the
section 9 prohibitions “any taking of polar bears that is incidental to, but not the purpose
of, ... an otherwise lawful activity within any area subject to the jurisdiction of the United
States except Alaska.” The effect of this exemption would appear to be that a coal-fired

³ ESA § 9(a)(1)(B); 16 U.S.C. § 1538(a)(1)(B).
⁴ ESA § 3(19); 16 U.S.C. § 1532(19).
⁵ 50 C.F.R. § 17.3.
⁶ ESA § 10(a); 16 U.S.C. § 1539(a).
⁷ 50 C.F.R. § 17.31(a).
⁸ See, e.g., 50 C.F.R. § 17.40 (special rules for mammals).
⁹ ESA § 4(d); 16 U.S.C. § 1533(d).

power plant anyplace in the United States except Alaska could not be deemed to “take”
polar bears through its GHG emissions. Unless the section 4(d) rule is judicially
invalidated, then, any effort to use the polar bear listing to reduce GHG emissions through
a “take” argument will almost certainly be unsuccessful.
A second flaw in the GHG-emissions-take-polar-bears argument is that of causal
proximity. GHG sources (anywhere in the U.S.) do not affect polar bears directly, but
through the intermediary steps of atmospheric mixing, Arctic warming, and sea-ice
melting. Is this a close enough nexus between activity and “take” to trigger section 9?
Section 9 case law indicates that, for a violation to occur, there has to be a causal
connection between the activity and the “take,”¹⁰ and “imminent harm” must be
“reasonably certain to occur.”¹¹ Case law further indicates that indirect effects can
constitute “takes,” but does not explicate further.¹² Given these vague standards, one can
say only that the argument that a source of substantial GHG emissions “takes” polar bears
is plausible. Greater certainty as to the argument’s chances of success is impossible given
that the decided cases involve facts very different from climate change.
Judicial attitudes toward the causal proximity required by the ESA may be
influenced by a Supreme Court decision in 2007, Massachusetts v. EPA, holding that
EPA has authority under the Clean Air Act (CAA) to regulate GHGs from new motor
vehicles.¹³ Relevant here is the Court’s discussion of Massachusetts’s standing to bring
the suit. There, it found that the reduction in automobile GHG emissions sought by the
state was likely to yield a non-negligible benefit to the state — slowing down its loss of
shorelands to sea level rise — thus satisfying the “redressability” requirement of standing
doctrine. The analogy between Massachusetts’s loss of shoreland and the polar bears’
loss of sea ice is evident, though standing law and the ESA are admittedly very different
contexts.
Finally, there is the question of whether the effect of a particular GHG emissions
source on polar bear habitat is de minimis.
ESA Section 7: Consultation with FWS
While section 9 applies to persons, section 7 applies only to federal agencies. It
demands that each federal agency “insure that any action authorized, funded, or carried
out by such agency ... is not likely to jeopardize the continued existence of any
endangered species or threatened species or result in the destruction or adverse

¹⁰ See, e.g., Cold Mountain v. Garber, 375 F.3d 884, 890 (9^th Cir. 2004).
¹¹ Defenders of Wildlife v. Bernal, 204 F.3d 920, 925 (9^th Cir. 2000).
¹² For example, in Defenders of Wildlife v. EPA, 882 F.2d 1294 (8^th Cir. 1989), EPA’s registration
of strychnine for use in bait was held to constitute a prohibited “take” of endangered species.
Registration allowed distribution of the bait, which led to its use against target species.
Endangered non-target animals then ate the bait directly, or indirectly by consuming target
animals that had ingested the bait and died. The court noted that EPA’s decision to register the
pesticide was “critical” to the resulting poisonings of endangered species, and that the
relationship between registration and deaths of endangered animals was “clear.” Id. at 1301.
¹³ 127 S. Ct. 1438 (2007).

modification of [designated critical habitat].” To minimize the chance of “jeopardy” or
“adverse modification,” section 7 creates a consultation process. If any listed species is
present in the area of the proposed action, the agency proposing to act prepares a
“biological assessment” identifying any such species likely to be affected, and setting out
relevant details of the action and available information on its potential effects. The
agency must then consult with the FWS, which prepares a “biological opinion” as to how
the proposed action will affect the species or designated critical habitat. If the biological
opinion finds jeopardy or adverse modification, the FWS must propose “reasonable and
prudent alternatives” that the action agency or permit applicant can take to eliminate
jeopardy or adverse modification.
Based on the argument above for “takes,” the argument may be made that the
proposal of a federal action “authoriz[ing], fund[ing], or [carrying] out” substantial
emissions of GHGs triggers section 7 consultation. And just as section 9 has a habitat
modification component, so does section 7, though only where critical habitat has been
formally designated. Moreover, case law supports the triggering of section 7 consultation
even when the effect of an agency action is remote from the area of agency action.¹⁴ If
sanctioned by the courts, this argument for section 7 consultation would effectively
require an agency to adopt any reasonable and prudent alternatives proposed by the FWS,
which presumably could include reduction of GHG emissions.
As with the section 9 “take” argument, the section 7 consultation argument has its
vulnerabilities. The major one is causation. FWS regulations say that section 7
consultation evaluates the “direct and indirect effects” of the proposed action.¹⁵ “Indirect
effects” are “those that are caused by the proposed action and are later in time, but still
are reasonably certain to occur.”¹⁶ The listing preamble strongly insists that the “caused
by” requirement is not satisfied in the case of GHG emissions and the plight of the polar
bear.¹⁷ States the preamble: “The best scientific information available to us today ... has
not established a causal connection between specific sources and locations of emissions
to specific impacts posed to polar bears or their habitat.”¹⁸ Moreover, recently proposed
amendments to the consultation regulations would make it even less likely that FWS
would regard climate change-related impacts on the polar bear as an indirect effect of a
federal action, triggering consultation.¹⁹

¹⁴ See, e.g., Riverside Irrigation Dist. v. Andrews, 758 F.2d 508 (10^th Cir. 1985) (in considering
permit application for discharge into creek to build earthen dam, Corps of Engineers must factor
in that dam will create reservoir, which will increase consumptive uses of creek water, which will
deplete stream flow, which will adversely affect habitat of endangered whooping cranes 150
miles downstream).
¹⁵ 50 C.F.R. § 402.02.
¹⁶ Id. (emphasis added).
¹⁷ The listing preamble’s only explication of the “caused by” prong is to say that the FWS
confines its section 7 evaluation to effects that would not occur “but for” the action under
consultation. 73 Fed. Reg. at 28,299.
¹⁸ Id.
¹⁹ 73 Fed. Reg. 47868 (August 15, 2008). The proposed amendments to the current agency
definition of “indirect effects” (see text above) would define indirect effects as those effects “for
(continued...)

The preamble reference to “[t]he best scientific information available to us today”
acknowledges that new scientific information may provide the requisite causal
connection. A second point is that while the causal nexus between “specific sources” and
adverse effects on polar bear habitat may be elusive, some federal actions — such as CAA
regulations — may increase GHG emissions from enough sources that the linkage may
be more clear.²⁰ Third, in contrast with the section 9 prohibitions, the FWS cannot by
special rule narrow the range of circumstances that trigger section 7 consultation —
though its views on the causal nexus between GHG emissions and polar bears, or lack
thereof, will likely be accorded deference by a court. A final point is that as with the
causation issue under section 9, Massachusetts v. EPA may be influential here as well.
As with section 7, a de minimis argument exists for consultation.
Another problem with use of section 7 for polar bears is that the May 15, 2008 listing
was not accompanied by designation of critical habitat for the bear. The Center for
Biological Diversity sued, challenging this failure to designate.²¹ In the meantime, any
effort to force a section 7 consultation based on a proposed activity’s GHG emissions will
have to argue that the emitting source satisfies the “jeopardy” trigger for consultation.
Other Listing Petitions Related to Climate Change
Though the polar bear petition was the most publicized, several other listing petitions
have been filed for animals alleged to be endangered or threatened due, in whole or in
part, to climate change. The Center for Biological Diversity is the sole petitioner in
almost all of these, reflecting its campaign to use the ESA to address climate change.
Besides the polar bear, only one of these petitions has reached a final listing
determination — that for the elkhorn and staghorn coral, in 2006. Seven other petitions
are currently pending, and are listed below. To understand their status, the procedural
stages in the ESA listing process must be reviewed. First, the 90-day finding. Upon
receipt of a petition, the appropriate Secretary (of the Interior, or of Commerce) must
determine if it “presents substantial ... information indicating that the petitioned action
may be warranted,” and must do so within 90 days, if practicable. Second, the 12-month
finding. If the 90-day finding is positive, the Secretary must determine whether listing is
warranted, not warranted, or warranted but precluded by other pending proposals that
require immediate attention, within 12 months of receiving the petition. If the 12-month

¹⁹ (...continued)
which the proposed action is an essential cause, and that are later in time, but still are reasonably
certain to occur.” (Emphasis added.) Further, the amendments would specify that “[a] conclusion
that an effect is reasonably certain to occur must be based on clear and substantial information.”
(Emphasis added.) This means, states the preamble, that the indirect effect “cannot be
speculative, and must be more than just likely to occur.” Id. at 47872. These proposed changes
(and others) reinforce, in the FWS’s view, the agency’s “current view that there is no requirement
to consult on [GHG] emissions’ contribution to global warming and its associated impacts on
listed species (e.g., polar bears).”
²⁰ ESA regulations make express that a federal agency’s promulgation of regulations may trigger
section 7. 50 C.F.R. § 402.02 (definition of “Action”).
²¹ Center for Biological Diversity v. Kempthorne, No. C-08-1339-CW (N.D. Cal. second
amended complaint filed July 16, 2008).

finding concludes that listing is warranted, the Secretary must promptly publish a
proposed rule to list. Third, the final listing determination. Within one year of publishing
the proposed rule, the Secretary must publish a final listing determination either listing
or withdrawing the proposal.
The seven pending listing petitions related to climate change, together with the year
each petition was filed and current status, are —
^!Kittlitz’s murrelet, 2001. This Arctic sea bird has been in “warranted but
precluded” status for several years. That status is being challenged in
court on the ground that the Secretary of the Interior has not satisfied the
ESA prerequisite for such status that “expeditious progress is being
made” in adding and deleting other species from the endangered or
threatened list.
^!Twelve species of penguin, 2006. The failure to make a 12-month
finding as to 10 of these species is being challenged in court. (In contrast
to other species in this list, these twelve species are found exclusively
outside the United States.)
^!American pika, 2007. The failure to make a 90-day finding for this small
alpine mammal is being challenged in court. (A similar suit attacks
California’s rejection of a listing petition for the pika under that state’s
Endangered Species Act).
^!Ashy storm petrel, 2007. A positive 90-day finding for this seabird was
made on May 15, 2008.
^!Ribbon seal, 2007. A positive 90-day finding was made on March 28,

2008.

^!Pacific walrus, 2008. The failure to make a 90-day finding has led to
submission of 60 days’ notice of a future citizen suit.
^!Ringed, bearded, and spotted seal, 2008. Petition to list filed May 28,

2008.

Other Efforts to Adapt Existing Laws
to Addressing Climate Change
The Center for Biological Diversity’s campaign to use the ESA against climate
change is only part of a broad effort by states, public interest groups, and individuals to
use existing laws for this purpose. Climate change-related litigation has invoked the
CAA, wildlife protection statutes (the ESA and Marine Mammal Protection Act), energy
statutes (Energy Policy and Conservation Act and Outer Continental Shelf Lands Act),
information statutes (including the National Environmental Policy Act), nuisance law, and
state laws governing electric utilities.²² The number of case filings has proliferated in
recent years. Under either the ESA or other statutes, however, it is likely that
complainants fully understand the inability of these laws to produce broad schemes for
dealing with climate change. Rather, these suits have almost certainly been filed, in part,
to pressure Congress or international negotiators to adopt comprehensive solutions
tailored to the specifics of climate change.

²² See generally CRS Report RL32764, Climate Change Litigation: A Growing Phenomenon, by
Robert Meltz.