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Court should hold feds accountable for questionable ESA listing

By Reed Hopper

For the Capital Press

Polar bear case hinges on the federal Endangered Species Act.

Asking tough questions of government officials is often unpopular these days. Whether the subject is domestic spying, global warming, the war on terror, or agency abuse of power, questioning decision-makers has come to be viewed by many as unseemly or even downright unpatriotic.

But we should never allow “accountability” to become a bad word. Accountability is essential to protect us from arbitrary governmental actions, provide transparency, and ensure trust in public institutions.

And the best way to hold officials accountable is to ask questions. Hard questions. Even unpopular questions.

Accountability is the goal of a lawsuit that the U.S. Supreme Court has been asked to take up — challenging the federal government’s decision to list the polar bear as a threatened species under the Endangered Species Act. The High Court could decide whether to take the case as early as Sept. 30.

Polar bears are a beautiful and iconic species, revered worldwide. This very fact is no doubt the reason why the U.S. Fish and Wildlife Service flouted the law in listing the species in the first place.

Under the ESA, an animal may be designated as “threatened” only if it is on the brink of extinction in the foreseeable future. Yet we know this about the polar bear:

• Polar bear populations are not declining overall; in fact, there are more polar bears today – as many as 25,000 — than any time in recorded history.

• Polar bears continue to utilize their historic geographical range, one of the largest habitats in the world.

• Polar bears do not face any sudden or calamitous threat.

• Polar bears are not rare, or on the brink of extinction, or critically imperiled.

• Any changes in polar bear populations are likely to be gradual over many years, and no long-term projections can be made with certainty.

• Fourteen of the world’s 19 polar bear populations are stable, increasing, or yet to be determined.

• And ironically, according to the Secretary of the Interior, the listing will provide no protections against what the agency contends is the primary threat to polar bears — melting sea ice.

Some may question this data, but the government does not. These are the facts as recited by the Fish and Wildlife Service in defending its decision to list polar bears as a threatened species. But the agency has never expressly answered the hard question: How do these facts support an ESA listing when they demonstrate that the species is thriving?

Holding the agency accountable — demanding answers about its decision-making — is doubly important in this case, because the polar bear listing is a first. Never before has a healthy species been added to the ESA’s “threatened” list.

Instead of demonstrating an actual decline in polar bear numbers, regulators hypothesized about future global warming trends and changes in habitat that might — or might not — happen, decades in the future.

This approach — substituting conjecture for concrete facts — could vastly expand governmental power and contract individual freedom. If species can be added to the ESA list even though they aren’t currently threatened, based on speculative projections about the distant future, there could be no limit to the number of new listings. There are tens of thousands of species on earth, and almost all face some future risks. This is significant because listing a species gives the federal government virtually complete regulatory control over species habitat on both public and private property. These habitats can cover thousands of square miles, as with the polar bear, resulting in restrictions on land use that affect jobs, energy, housing, transportation, and food production.

Already the polar bear listing has triggered environmentalist challenges to oil and gas exploration in Alaska’s Chukchi and Beaufort Seas. Lawsuits in the Lower 48 could follow. Activists could challenge industrial activity on the grounds that the ESA listing says polar bears might be harmed — at some point in the future — because of carbon dioxide emissions.

Federal officials may be able to articulate a proper basis for listing the polar bear, but they have not done so yet; instead, they offer only admittedly uncertain judgments about what might transpire many years from now.

Unfortunately, the lower courts have given a pass to the listing, and allowed the feds to start practicing “regulation by speculation.”

If there’s going to be accountability for this new approach to ESA policymaking, the Supreme Court will have to provide it. The court should step in and demand that officials justify their questionable listing decision and the precedent it sets for a dramatic expansion in federal regulatory power.

Reed Hopper is a principal attorney with the Pacific Legal Foundation (www.pacificlegal.org) and represents the Congress of Racial Equality in challenging the listing decision, along with Safari Club International and the Conservation Force.



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