Polar Bear Ruling to Bring Tsunami of Lawsuits

Senior Fellow
Kevin A. Hassett

As expected, the U.S. Department of the Interior added the polar bear to the list of threatened species under the Endangered Species Act last week. Even with the Bush administration's attempt to render the ruling toothless, this action will almost surely go down in history as the turning point in the global warming debate.

The department concluded that the past and projected melting of sea ice in the Arctic poses an immediate threat to the polar bear's habitat. It pointed to greenhouse-gas-induced climate change as a primary cause for the recession of the sea ice, and emphasized that oil and gas development in the Arctic isn't the reason the polar bear is threatened.

Make no mistake, within a year or two, we can expect the polar bear to begin influencing everyday American economic life.

The polar bear's listing wasn't intended as a back door for environmental groups to bring lawsuits against greenhouse gas emitters, according to the ruling.

Interior Secretary Dirk Kempthorne said listing the polar bear as threatened can reduce avoidable losses of the animal. Yet, he said, it doesn't mean the law should be used "to regulate greenhouse-gas emissions from automobiles, power plants and other sources. That would be a wholly inappropriate use of the Endangered Species Act. ESA is not the right tool to set U.S. climate policy."

Georgetown University law professor Lisa Heinzerling summarized the Bush administration's actions aptly: "The Department of the Interior has, in short, worked very hard to make sure that its listing of the polar bear under the Endangered Species Act does not trigger the usual protections that act provides."

Indefensible Action

Such an action is logically and ethically indefensible. For the administration to determine that the polar bear is threatened, it had to conclude that global warming will melt the ice that polar bears need to survive. Having reached that conclusion, the Endangered Species Act requires them to take action to slow global warming. They can't decide not to do their job and enforce the law.

One can imagine that there is some not-so-clever polar bear skeptic in the White House who thought this was a brilliant maneuver. The fact is, if they believed that inaction was the right policy, then they should have refused to list the bear as threatened. It's ludicrous to try to have it both ways.

Historians will doubtless use this cynical decision as a canonical example of what was wrong with this administration.

In the near term then, the polar bears aren't going to be saved by this government. But don't fret. If George Bush won't save the polar bear, Perry Mason will.

Legal Challenges

Environmental groups are already preparing legal challenges. Kassie Siegel of the Center for Biological Diversity told USA Today last week that the Endangered Species Act requires agencies now to address greenhouse gases, and warned that "we can and will go to court to enforce the law."

When Siegel and her colleagues take that action, they will win. The U.S. government has no chance of having a court uphold its twisted logic. That is especially true because environmentalists will be able to bring lawsuits in jurisdictions of judges who are predisposed to interpret the Endangered Species Act sympathetically.

Make no mistake, within a year or two, we can expect the polar bear to begin influencing everyday American economic life.

Oil exploration in the Arctic will be affected, though that's not the half of it.

Widening Reach

Attorney and columnist Hugh Hewitt described what that new world will look like: "Environmental activists will argue that all emissions of greenhouse gases that flow as a consequence of the grant of a federal permit of any sort are now subject to review under the ESA and, crucially, that those permits cannot be issued unless and until the United States Fish & Wildlife Service reviews and approves of the requested permit."

The fact is, just about everything requires some kind of permit, so just about anything that emits greenhouse gases could be subject to a challenge. The process will rapidly spread the reach of this ruling throughout the energy industry and U.S. manufacturing.

An activist armed with a lawyer can now halt anything he wants. He might even be able to stop you from driving to work or taking a hot shower.

If you consider the chaos that is about to ensue, there really is only one logical solution. Congress needs to act immediately to adopt either a carbon tax or a cap-and-trade system that meaningfully addresses climate change. And while it does, it must revise the Endangered Species Act to acknowledge the fact that global warming is being addressed by this new policy.

It is only a matter of time until the legal chaos ignited by this ruling makes that truth clear to everyone.

Kevin A. Hassett is a senior fellow and director of economic policy studies at AEI.

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