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Polar bear listing OK despite 'inconclusive' data

Judge says agency must 'rely on the best available science'


Capital Press

The California Cattlemen's Association has lost a legal challenge against the inclusion of polar bears on the federal list of threatened and endangered species.

A federal judge in Washington, D.C., has ruled the U.S. Fish and Wildlife Service was justified in listing the polar bear as threatened under the Endangered Species Act.

The agency listed the species in 2008 after concluding that its sea ice habitat is melting due to climate change caused by greenhouse gas emissions.

The California Cattlemen's Association and the state of Alaska filed legal complaints against the agency, arguing the listing decision wasn't supported by solid evidence.

U.S. District Judge Emmet Sullivan has sided with the federal government, finding that its findings were not irrational.

"It is well settled in the D.C. Circuit that FWS is entitled -- and, indeed, required -- to rely on the best available science, even if that science is uncertain or even 'quite inconclusive,'" according to the ruling.

At the time of the listing, livestock production was often cited as a major source of greenhouse gas emissions due to a report from the U.N. Food and Agriculture Organization, said Justin Oldfield, director of government relations for the California Cattlemen's Association.

"As an industry, we were taken aback by that. We were reeling from what might happen next," he said. "We were concerned there was this trend taking place."

The group worried that federal protections for the polar bear could result in massive new regulations that affect livestock producers, Oldfield said.

Since then, however, the U.N. report, "Livestock's Long Shadow," has been challenged by credible university researchers and findings from the U.S. Environmental Protection Agency, he said.

Also, the political momentum behind a national climate change policy has lagged due to the recession, Oldfield said, noting that new regulations from the polar bear listing now seem less imminent.

"Things have changed quite dramatically," he said. "This issue is not as at the level it was in 2008."

However, the polar bear listing could still have a major impact on livestock production and other industries, said Reed Hopper, an attorney with the Pacific Legal Foundation who represented the association.

The Fish and Wildlife Service has enacted a special rule that effectively absolves federal agencies from having to evaluate the effects of greenhouse gas emissions on polar bears.

Environmental groups have challenged that rule as part of the ongoing litigation over the species.

If the judge overturns that rule, environmental groups would be free to sue federal agencies for failing to enforce the Endangered Species Act by not mitigating the greenhouse gas emissions of various industries, Hopper said.

"It could have a dramatic effect on our economy," he said.

Though it's conceivable that such lawsuits would be filed if the special rule was reversed, it would be unlikely to unleash a flood of new litigation, said Kassie Siegel, senior counsel for the Center for Biological Diversity, which is involved in the litigation.

"They're making a logical leap," she said.

Even so, Siegel said the Endangered Species Act should be one of many tools used to battle greenhouse gas emissions.

"We face a physical threat from climate change," she said. "It's terribly tragic that a few industries are impeding progress."

Siegel said the California Cattlemen's Association's fears are misplaced. If anything, the Clean Air Act would be a more likely statute for reducing greenhouse gases from the livestock industry, she said.

"The primary way to get at those emissions is not through the polar bear listing," she said.


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