In an article published in the Boston University Law Review a couple of months before the listing decision, I suggested that the agency do exactly what it did. The agency, of course, can argue its own case, but here are my three reasons why I believe it made the right move:
1. The Listing. Regardless of population numbers, industry has it wrong to say that the bear is not facing potential threats to its survival. If present trends are extrapolated, the species is in trouble. On the other hand, the agency is not required to extrapolate only one scenario. After all, the real problem for the polar bear is human political will--lack of it. But it seems two-faced for environmental groups to argue that legal measures are needed to alter GHG emission trends but that FWS cannot anticipate that possibility. Designating the species as threatened, but not yet endangered, fulfills the precautionary purpose of the threatened category. It's in the ESA for a reason, and the polar bear is a perfect case for its application.
2. Greenhouse Gases. One advantage of the threatened designation is that the ESA allows FWS to tailor protective measures for threatened species, whereas the full weight of the ESA's regulatory anvil lands when a species is designated as endangered. The concern is over how the ESA would treat GHG emissions were the polar bear listed as endangered. To suggest that the ESA is the way to accomplish a cogent, rational GHG policy is nothing short of ludicrous. As a practical matter, FWS and its ESA ocean species twin, the National Marine Fisheries Service (NMFS), have absolutely no capacity or expertise to regulate GHG emissions from industry or other sources. They are mainly habitat protection agencies, not pollution control agencies. More to the point, as a legal matter there is no principled way to identify which molecules of GHGs are harming the polar bear. Why would a coal-fired power plant in Kansas be the culprit, but not agriculture in California? If any source of GHGs is harming or jeopardizing the polar bear under the ESA, all sources are legally to blame. How would the agency choose which sources to go after without opening up a huge can of legal worms like this? Listing the polar bear as threatened avoided this problem in large part, and the agency has stated it will not pursue GHG emissions in contexts where the threatened designation nonetheless requires the agency to exercise its regulatory authority. That was the right position to take. Congress needs to belly up to the climate change bar and develop meaningful GHG legislation, not leave it to FWS to try to jam the huge square peg of GHG emissions into the small round hole of the ESA.
3. Helping Climate-Threatened Species. The polar bear is just one of the first species listed under the ESA based on climate change (NMFS had previously listed several coral species), but it won't be the last. FWS and NMFS should be focusing on what they do best--protect habitat. Many climate-threatened species can be helped along through habitat protection measures, given a bridge to what we hope will be a stabilized, albeit different, climate regime of the future. FWS and NMFS should focus their resources on this important component of our climate change policy.