Environmental groups today urged the Obama administration to take a serious look at the effect climate change has had on polar bears after a judge vacated a rule that prevented greenhouse gases from being regulated under the Endangered Species Act.

In a ruling issued this morning, U.S. District Judge Emmet Sullivan threw out the the so-called 4(d) rule that accompanied the George W. Bush administration's 2008 decision to list the polar bear as a "threatened" species under the Endangered Species Act (ESA) (Greenwire, Oct. 17).

He ordered that the U.S. Fish and Wildlife Service carry out an environmental review to meet the requirements of the National Environmental Policy Act (NEPA).

However, Sullivan also upheld FWS's decision that the Endangered Species Act was not the appropriate vehicle to regulate greenhouse gases.

Environmental groups hope that the administration uses the decision as an opportunity to discard the rule altogether and seek to regulate emissions under ESA, something it has said previously it does not want to do.

"One of the very important things about today's ruling is that it's going to force the Obama administration to face head-on the effect global warming is having on the polar bear and the entire Arctic ecosystem," said Andrew Wetzler, an attorney at the Natural Resources Defense Council.

Brendan Cummings, senior counsel at the Center for Biological Diversity, favors the same approach.

"The point of NEPA is to consider all potential impacts and alternatives," he said. "So a proper NEPA analysis would have to at least consider an alternative 4(d) rule that addresses greenhouse gases."

Today's ruling also prompted a response from Rep. Ed Markey (D-Mass.).

Sullivan's decision "shows that it is an unacceptable practice for the government to freeze out science and environmental review," he said.

The Justice Department, still digesting the ruling, declined to comment. Lawyers for industry groups involved in the case could not be reached.

The administration, assuming it still does not want to regulate greenhouse gases under ESA, can take some solace from the other part of Sullivan's ruling.

He wrote that the Bush administration's conclusion that the statute was not the appropriate vehicle to regulate greenhouse gases was not a violation of the Administrative Procedure Act.

"Although the court is sensitive to plaintiffs' arguments for a strong mechanism to combat the effects of global climate change, the court finds that the agency's conclusion was not arbitrary, capricious or contrary to law," Sullivan wrote.

David Bernhardt, who was the Interior Department's solicitor at the time the special rule was issued, said that although Sullivan "disagreed with the service regarding its procedural obligations under NEPA," it was important to note that he also "upheld the service's interpretation and application of the substantive provisions" of the ESA.

Reed Hopper, an attorney at the Pacific Legal Foundation, a conservative legal group, said that Sullivan's ruling on the ESA point "strikes a blow against the environmentalists' global warming agenda who had hoped to drive national global warming policy through citizen suit litigation."

As FWS has already determined that greenhouse gas emissions should not be regulated under ESA, "it is unlikely the agency will conclude that the 4(d) rule exemption does have a significant effect on the human environment," he added.

Click here to read Sullivan's ruling.