As deadline looms, Interior mulls Bush's polar bear rule
By Allison Winter, Greenwire

Prominent House Democrats and environmental groups are pressuring the Obama administration to overturn a special rule on polar bears from the Bush administration -- part of an effort to provide another federal tool for addressing climate change and curbing greenhouse gas emissions.

The Interior Department has until Saturday to throw out the contested polar bear rule, a move that could open the door to scrutinizing the potential emissions of greenhouse gases of a wide range of projects -- from power plant proposals to new housing developments and interstate highway expansions -- as threats to polar-bear habitat.

The special rule in question limits the use of the Endangered Species Act to regulate greenhouse gas emissions. The Bush administration finalized the rule in December, six months after it listed the polar bear as a threatened species due to the melting of its sea-ice habitat.

With the departure of President George W. Bush and the strengthening of Democratic majorities on Capitol Hill, Congress this year passed a provision to the massive omnibus spending bill allowing the Obama administration to swiftly reverse the polar bear rule and another of Bush's Endangered Species Act revisions, which eliminated a need that agencies consult with federal biologists on projects that might affect endangered species.

Last week, the administration reversed the consultation rule. But Interior officials say they are still considering the polar bear rule.

"The [consultation rule] repeal was a huge victory in favor of sound science and common sense, but it's only half the pie," said Bill Snape, an attorney with the Center for Biological Diversity. "We need to get rid of that bad Bush rule on polar bears and global warming to allow a fresh start for all wildlife under the Obama administration."

Industry groups are fighting to make sure that reversal of the "4(d) rule" for the polar bear does not happen. The National Association of Home Builders is among the groups arguing that the narrowed requirements in both of the Bush rule revisions gave some certainty about what would be required of them as more species gain protection against habitat damage linked to climate change.

"The only comfort, if any, we would get is from the 4(d) rule," said Mike Mittelholzer, who works in NAHB's environmental policy department.

Political pressure

An intense lobbying effort preceded the overthrow of the consultation rule, which the Bush administration pushed through in its final months of office to a chorus of criticism from scientists, conservation groups and Capitol Hill Democrats.

President Obama himself cited that rule as one of the last-minute regulatory changes he would like to reverse and issued a memorandum in March that directed federal agencies to continue to require wildlife consultations.

But there has been less pressure on the polar bear rule, and some advocates for its reversal say there may not be enough momentum to reverse it.

Interior has yet to send a proposal on the polar bear to the White House Office of Management and Budget, as was done four days before the consultation rule reversal was announced.

But the department did ask a federal judge in U.S. Circuit Court for the District of Columbia to delay a scheduled court conference on lawsuits over the polar bear rule until after the Saturday, May 9, deadline -- indicating changes are at least under consideration.

In an effort to turn up the heat on the issue, members of Congress and California's state legislators sent letters to Salazar last week asking him to revoke the rule. Environmentalists donned polar bear costumes at a recent press conference on Capitol Hill to bring attention to the issue.

Reps. Edward Markey (D-Mass.) and Jay Inslee (D-Wash.) and 39 other House members signed the congressional letter, which says the polar bear rule ignores the Endangered Species Act's mandate to "adopt all measures necessary for the conservation of threatened species." The separate letter from 35 members of the California Legislature calls for reversal of both the endangered species rules.

Over 130 environmental groups, more than 1,000 scientists and 31 law professors have each signed letters protesting the Bush rule. Environmental groups have also gathered hundreds of thousands of citizen petitions calling for repeal of the rules.

Meanwhile, the option for Interior to overturn the rules has generated heat from Republicans.

Sen. Lisa Murkowski (R-Alaska) cited the endangered species rules when she put a "hold" last week on the confirmation of Obama's pick for No. 2 at Interior, David Hayes. Murkowski's main objection was the department's decision to overturn the consultation rule, but she is concerned that the polar bear rule would "be another step down that path," said Murkowski spokesman Robert Dillon.

"We are concerned about the polar bear and the Arctic, but it is not the proper way to go about dealing with climate change -- it is a very blunt instrument," Dillon said.

What is a polar bear's reach?

The Endangered Species Act allows special "4(d)" rules for threatened species that can exempt some management restrictions that might otherwise be required for endangered species.

The polar bear's special rule prohibits federal officials from considering indirect, adverse effects on the bear from activities outside of its habitat: for example, carbon dioxide emissions that are linked to climate change and the loss of the bear's sea ice. The rule also gives leeway for restrictions on harming or killing a bear and waives some requirements for habitat protection. The greatest concern for environmentalists is the greenhouse gas exemption.

"What ESA is designed to do is identify the threat for the species and do something about it," said Kassie Siegel of the Center for Biological Diversity. "What Bush has done is said greenhouse gas emissions, which are the primary threat to the polar bear, are exempt -- it cuts the heart out of the actions the act should provide, and there is no basis for it in the law."

Siegel and other environmentalists want federal agencies to consider how power plants or development projects might affect the bear before approving permits -- even if those projects are in the lower 48 states and far removed from polar bear habitat.

If the administration overturned the special rule, it could potentially open the matter up to more lawsuits. Siegel, whose group has filed hundreds of lawsuits to force more stringent protections under ESA, said the center would "definitely" consider lawsuits over power plants, were the rule not in place.

The potential for those lawsuits is of some concern to industry groups that favor the special rule as it stands.

"That is part of the issue with the rule -- without it, it is fairly unpredictable what could or could not happen," said Lakeisha Harrison, a spokeswoman for the American Petroleum Institute.

API and other industry groups sued the administration over its original proposal for the special 4(d) rule but dropped the suit after the final rule narrowed restrictions to focus only on the polar bear's habitat.

The special rule could also play out with projects closer to the polar bear's habitat, such as industrial activity in the Arctic. Environmental groups want the administration to throw out the special rule, so wildlife biologists could require projects to consider alternatives to diesel generators, for instance, a major source of black carbon that can melt polar ice.

'They shouldn't close that door'

The Obama administration has pledged to address climate change. But even Obama's Interior Department has indicated it does not intend to use the Endangered Species Act to address carbon dioxide emissions.

Hayes, Salazar's pick to be his second-in-command, told senators during his confirmation hearing that the endangered species law was ill-suited to addressing climate change. Tom Strickland, the assistant secretary for fish, wildlife and parks, said the same at his hearing.

While the administration readily admits climate change is hurting wildlife, it says it may be too hard to draw a direct link from a power plant in Arizona to a polar bear.

"While it may be difficult to make that link -- and they would have to -- they shouldn't close that door," said Bob Irvin of Defenders of Wildlife.

When environmentalists sued to force a listing of the polar bear under the Bush administration, they presented the potential to force a hesitant administration to take action on climate change. But now Congress is working on climate legislation and U.S. EPA has issued a proposed "endangerment finding," which could lead to regulation of greenhouse gases under the Clean Air Act.

But environmentalists have not relinquished their insistence that ESA should still be available to assess the effects of greenhouse gases on polar bears.

"It's not like they have to choose 'either/or,'" said John Kostyack of the National Wildlife Federation. "They can be strong on the science of ESA and promote the climate bill."

Lawsuits await

Regardless of what the administration decides, it will still be spending plenty of time on the issue in court.

Interior is facing a half-dozen lawsuits on the polar bear listing.

Environmental groups sued to overturn the 4(d) rule and to upgrade protections for the bear from "threatened" to "endangered." And the state of Alaska and the Pacific Legal Foundation filed two separate lawsuits that attempt to block protection of the bear.

The administration also faces lawsuits from hunting groups that want their members to be able to bring back polar bear trophies from Canada.

The lawsuits are consolidated into one case before U.S. District Court Judge Emmet Sullivan in the District of Columbia. Sullivan scheduled a conference for later this month, where the parties will likely work out a briefing schedule.

Copyright 2009 E&E Publishing.