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Polar bear
The New York Times, May 8, 2009

Interior will keep Bush's polar bear rule
By Allison Winter, Greenwire

Interior Secretary Ken Salazar announced today that he will retain the Bush administration's controversial rule on polar bear protections, rejecting special authority given to him by Congress and the pleas of Democratic lawmakers, environmentalists and scientists to overturn the regulation.

While keeping the rule -- which limits use of the Endangered Species Act to curb emissions of greenhouse gases -- Salazar held open the possibility of adding habitat protections for the polar bear later.

"To see the polar bear's habitat melting and an iconic species threatened is an environmental tragedy of the modern age," Salazar said. "This administration is fully committed to the protection and recovery of the polar bear."

The rule in question was finalized by the Bush administration in December, six months after the polar bear was declared a threatened species due to the melting of its sea-ice habitat. Environmentalists, lawmakers, law professors and scientists who sent letters to Salazar urging him to toss the rule decried his decision.

"We're very disappointed that Secretary Salazar decided not to cut through the red tape and restore protections for polar bears immediately," said Jamie Rappaport Clark of Defenders of Wildlife, a former director of the Fish and Wildlife Service. "[The rule] made no sense under the Bush administration and it certainly makes no sense for the Obama administration."

Interior will now be forced to defend the rule in court. Environmental groups that sued to overturn the 4(d) rule said today that they plan to press their lawsuit.

"Thank God for the courts," said Bill Snape, an attorney with the Center for Biological Diversity. "We feel pretty good that we're going to knock out that rule in litigation; it will just take more time and spend everyone's resources."

Some environmental groups see the polar bear listing as their best opportunity to force the government to consider harm from greenhouse gases and regulate emissions. Even though the Obama administration has pledged to address climate change, Salazar said today that such action should not come through the Endangered Species Act -- the same position taken by the Bush administration.

"When the ESA was passed, it was not contemplated it would be the tool to address the issue of climate change," Salazar said. "It seems to me that using the Endangered Species Act as a way to get to that global warming framework is not the right way to go."

The Obama administration is hoping Congress will address climate change with legislation to curb emissions.

"We need to have a comprehensive global change strategy, and we're working on trying to get something through the United States House and Senate," Salazar said.

That stance was hailed by groups concerned that polar bear protections could affect their businesses.

"We welcome the administration's decision because we, like Secretary Ken Salazar, recognize that the Endangered Species Act is not the proper mechanism for controlling our nation's carbon emissions," American Petroleum Institute President Jack Gerard said. "Instead, we need a comprehensive, integrated energy and climate strategy to address this complex, global challenge."

'Not the end of the story'

While the administration declined to use the fast-track authority to overturn the ESA rule, Salazar and other Interior officials said they might pursue changing the rule through the regulatory process if polar bear populations decline.

"The decision today is not to withdraw that rule, but that is not the end of the story and not the end of the efforts," said Tom Strickland, the assistant secretary for fish, wildlife and parks. "We may look at whether there are things that need to be done through a rulemaking process."

Salazar said he would also be open to broader changes to ESA regulations -- since the act faces new challenges as more species are protected due to threats from global climate change.

"The ESA has been a very useful tool," Salazar told reporters. "There may be ways in which the Endangered Species Act could be changed to make it more effective, so we could spend more money to protect habitat and species -- is there a better way of doing what the Endangered Species Act is supposed to do?"

The legal complaint on the 4(d) rule is among a half-dozen lawsuits Interior faces on the polar bear listing.

Environmental groups have also sued 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 a single 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.

Photo © Paul S. Hamilton