The Obama administration told a federal judge in Washington, D.C. Wednesday that a species may be considered "endangered" under the Endangered Species Act only if it is on the very precipice of disappearing from its native habitat.
Because the polar bear isn't that close to extinction, a government lawyer said, its status as a threatened species should stand.
The argument came in a hearing held on a challenge to the administration's decision to stick with the George W. Bush administration's 2008 designation of the polar bear's status under the ESA.
Listing the polar bear as "threatened" does not require the administration to protect its habitat from adverse impacts, whether from oil drilling or climate change. An "endangered" listing would impose that duty on the government.
Judge Emmet Sullivan seemed to indicate that he was not certain whether the courts have any statutory authority to force the U.S. Fish & Wildlife Service to do more for the polar bear.
Kassie Siegel, a lawyer representing environmental groups that are challenging the threatened listing, bluntly told the veteran jurist that the only way to save the polar bear is to require "deep and rapid greenhouse gas reductions."
However, the regulation that creates the dichotomy in the treatment of a listed species' habitat appears to stand in the way of such a mandate from a federal judge.
The rule, which former interior secretary Dirk Kempthorne issued on the same day he announced the polar bear's listing as a threatened species, aims to prevent the ESA from being used as a tool to force a lowering of U.S. greenhouse gas emissions.
President Obama's secretary of the interior, Ken Salazar, has not attempted to revise or revoke it.
The environmental group plaintiffs maintain that, because the sea ice upon which polar bears depend for hunting is expected to continue disappearing, the species must be considered endangered.
Sea ice in the Arctic, which is essential habitat for the polar bear during the summer months, is being lost as Earth's atmosphere warms. The National Snow and Ice Data Center has reported that the rate of melt is increasing during every month of the year.
Elements of industry and the state of Alaska argue that the polar bear does not merit even a threatened species designation. They do not dispute that the sea ice habitat upon which polar bears depend is disappearing, but maintain that its loss does not necessarily mean that the species will go extinct.
Washington, on the other hand, seemed to take the position that the listing provisions of the ESA is not the critical mechanism available in an effort to save the polar bear.
Clifford Stevens, the government lawyer representing the Fish and Wildlife Service in the case, told Sullivan that the recent critical habitat designation is the tool upon which the administration will principally rely.
Photo courtesy U.S. Fish & Wildlife Service.
