ENDANGERED SPECIES:

Judge considers 'elephant in the room' on polar bear case: greenhouse gases

A federal judge in Washington will consider asking the Obama administration to revisit a rule that exempts greenhouse gas emissions from being regulated under the Endangered Species Act.

U.S. District Judge Emmet Sullivan of the District of Columbia indicated yesterday he may call for further environmental review of the rule. He probed the issue at an all-day hearing, the latest in a series of court briefings to consider multiple lawsuits over protection of the polar bear.

At issue in yesterday's proceedings was a special rule, known as the "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.

The polar bear won ESA protection because of risks to its ice habitat from global climate change.

The high-profile listing was contentious because many environmentalists wanted to use it as an entryway to regulate greenhouse gases. The Bush administration opposed that and approved the rule, which states that protection of the bear under ESA should not be used on its own to regulate activities in the lower 48 states, like power plants or pesticides.

But Sullivan noted that the rule avoids directly addressing the chief threat to the bear, climate change.

"Can a 4(d) rule be reasonable even if it does not directly address the primary threat to a species? Can that be reasonable?" Sullivan asked. "Really, the elephant in the room is greenhouse emissions."

Sullivan has not yet made any decision on the case and repeatedly said yesterday that all of his questions were "hypothetical." But he spent considerable time exploring whether to send the rule back to the administration and how he might order a National Environmental Policy Act analysis.

The challenge to the rule came from a coalition of environmental groups -- including the Center for Biological Diversity and Natural Resources Defense Council -- that argued the regulation violated proper procedure and did not meet the standard of protection needed under ESA.

Brendan Cummings, an attorney with the Center for Biological Diversity, yesterday said the rule would "move the ball backward" for the polar bear.

"It is not just that they failed to include the threat; they crafted a rule that explicitly precludes anything outside the polar bear's range," Cummings said.

NEPA fight

The environmentalists' suit also argues the administration should have gone through the notice and environmental review process of the National Environmental Policy Act -- an idea that seemed of interest to Sullivan yesterday. The administration did not undertake a NEPA analysis for the rule. Species listings are exempt, but the special rule may not be.

Stressing the hypothetical nature of his questions, Sullivan repeatedly asked the plaintiffs and federal attorneys about the implications of various ways he might impose a NEPA analysis -- whether through throwing out the special rule altogether or calling for an analysis while it is kept in place.

"If the rule is vacated, that reverberates, does the court have the authority to keep the rule in place and order a remand for NEPA analysis?" Sullivan said.

"I could vacate, I guess, but is that fair? What should the court do; should the court give the government a chance or just return to a default?" Sullivan asked. "This hits on issues I believe are central issues."

Sullivan has demonstrated he is willing to call for NEPA analysis. In a case decided earlier this month, he ordered a NEPA analysis for a coal-fired power plant in Montana.

NEPA review is required for any "significant" federal action. Meredith Flax, arguing on behalf of the federal government, said the special rule did not meet the NEPA threshold of significance, because it did not change the regulatory or environmental landscape.

The 4(d) rule calls for management of bears to continue under the Marine Mammal Protection Act, effectively keeping in place the same protections it had before ESA listing.

But Cummings insisted the rule was significant, since protections could be very different without it in place -- an argument that seemed to have at least some appeal to Sullivan.

"The two alternatives might look significantly different, so is it really fair to say it is not a major federal action?" Sullivan asked.

Other lawsuits

Jeffrey Leppo, representing the Alaska Oil & Gas Association, said that throwing out the special rule would lead to a "regulatory and litigation morass," as oil and gas operators seek permits for ongoing activities and environmentalists look for more opportunities to sue.

"Plaintiffs didn't tell me about all the litigation that would ensue," Sullivan said with a chuckle. "And it would ensue, I tell you that."

When Congress gave the Obama administration a chance to revisit the rules, which were put in place in the waning days of the Bush administration, the Obama team upheld them. The support of two different administrations was noteworthy for Sullivan.

"That ... point is not insignificant. It has not been lost on the court," Sullivan said.

Sullivan is presiding over three different cases that consolidate the flurry of lawsuits related to the listing decision. He heard arguments in February over whether the bear should be listed as threatened or endangered or not listed at all.

Sullivan has not yet issued an opinion on that matter and did not indicate his timeline yesterday.

Lawyers argued the other two cases yesterday, on the special rules and whether the government should allow import of polar bear trophies from hunts in Canada.

Sport-hunting of the bears is already barred in Alaska, but Canada has a managed hunt of its bears. The listing does not directly affect the Canadian hunt, but it bans the import of polar bear skins and carcasses, which are much of the lure for hunters.

Congress included an exemption in the Marine Mammal Protection Act 14 years ago, allowing U.S. hunters to bring back fur or other trophies from polar bear hunts. Safari Club International argued that the exemption should still stand, even though the polar bear's status has changed in the United States.

A study from the U.S. Geological Survey that led to the listing found that shrinking sea ice could eliminate two-thirds of the world's polar bears -- and all of Alaska's bears -- in the next 50 years. Polar bears rely on sea ice to hunt, mate and make dens for their young. The population in Canada is still robust.