Bye-polar Kempthorne: Polar bear IS endangered, but “Rule will allow continuation of vital energy production in Alaska”

polar-bear-tongue.jpegThe Department of Interior suffers from a rare form of bipolar disorder called bye-polar disorder. There is one major symptom of this disorder: You list the polar bear as “threatened” because of its melting polar sea ice habitat, but then do nothing to actually protect that polar habitat from its primary threat, greenhouse gas emissions from fossil fuel combustion.

The disorder is accompanied by an occasional burst of logic, as when the DOI noted:

  • The polar bears need sea ice for feeding.
  • The sea ice is being destroyed by human-caused emissions, faster than the models had predicted.
  • Thus, the polar bear is endangered.

On the other hand, the disorder makes it physically, or at least psychologically, impossible for the patient to take any action based on that burst of logic. The quote in this post’s headline is from the DOI press release’s own subhead (see here and below). Someone will need to explain how producing fossil fuels — whose combustion is destroying the polar bear’s habitat — is consistent with preserving an endangered species.

The disorder is also marked by unintentional bursts of irony, as in the use of the phrase “Rule will allow continuation of vital energy production.” The word ‘vital’ means “Necessary to the continuation of life; life-sustaining.”

Kempthorne said:

“Listing the polar bear as threatened can reduce avoidable losses of polar bears. But it should not open the door to use of the ESA to regulate greenhouse gas emissions from automobiles, power plants, and other sources. That would be a wholly inappropriate use of the ESA law. The ESA is not the right tool to set U.S. climate policy.”

Sadly, doctors say bye-polar disorder is incurable. Worse, since global warming is opening up the Arctic to more fossil fuel drilling, victims of bye-polar disorder tend to suffer a progressively deteriorating condition.

If you want to become an expert on polar bears and their habitat, read the actual 368-page DOI rule here (big PDF). You can see the Wonk Room’s comments here. Sierra Club view here. The full press release is below:

Secretary Kempthorne Announces Decision to Protect Polar Bears under Endangered Species Act
Rule will allow continuation of vital energy production in Alaska

WASHINGTON, D.C. – Secretary of the Interior Dirk Kempthorne today announced that he is accepting the recommendation of U.S. Fish and Wildlife Service Director Dale Hall to list the polar bear as a threatened species under the Endangered Species Act (ESA). The listing is based on the best available science, which shows that loss of sea ice threatens and will likely continue to threaten polar bear habitat. This loss of habitat puts polar bears at risk of becoming endangered in the foreseeable future, the standard established by the ESA for designating a threatened species.

In making the announcement, Kempthorne said, “I am also announcing that this listing decision will be accompanied by administrative guidance and a rule that defines the scope of impact my decision will have, in order to protect the polar bear while limiting the unintended harm to the society and economy of the United States.”

Kempthorne further stated, “While the legal standards under the ESA compel me to list the polar bear as threatened, I want to make clear that this listing will not stop global climate change or prevent any sea ice from melting. Any real solution requires action by all major economies for it to be effective. That is why I am taking administrative and regulatory action to make certain the ESA isn’t abused to make global warming policies.”

In January 2007, the Fish and Wildlife Service proposed listing the polar bear as threatened throughout its range based on receding sea ice. At that time, Secretary Kempthorne directed the Fish and Wildlife Service and the USGS to aggressively work with the public and the scientific community to broaden understanding of what is happening with the species. In September 2007, the USGS delivered to the Fish and Wildlife Service nine studies related to the future condition of the polar bear and its habitat.

Declines in Sea Ice Documented

Kempthorne illustrated the listing decision with charts depicting satellite images of the differences in sea ice from the fall of 1979 to the fall of 2007. (Studies and models at Last year, Arctic sea ice fell to the lowest level ever recorded by satellite, 39 percent below the long-term average from 1979 to 2000. The amount of sea ice loss in years 2002-2007 exceeded all previous record lows.

In developing the nine studies it delivered to the Fish and Wildlife Service, the USGS relied upon 10 peer-reviewed climate models, all of which project a decline in Arctic sea ice in the future. In particular, the models project declines in September sea ice of more than 30 percent by the middle of the 21st century. Four of the 10 models project declines in September sea ice in excess of 80 percent by the mid -21st century. Seven of the 10 models show a 97 percent loss in September sea ice by the end of the 21st century.
Based on actual observations of trends in sea ice over the past three decades, these models may actually understate the extent and change rate of projected sea ice loss.

Under the ESA, five factors determine whether a species is to be listed. One of those factors is whether there is present or threatened destruction, modification, or curtailment of habitat.

According to the ESA, a species is listed as “threatened” when it is at risk of becoming “endangered” within the foreseeable future throughout all or a significant portion of its range. In contrast, a species is “endangered” when it is currently in danger of extinction throughout all or a significant portion of its range.

U.S. Fish and Wildlife Service Director H. Dale Hall recommended the listing decision. U.S. Geological Survey Director Mark Myers concurs with the scientific findings that support the decision.

The U.S. Fish and Wildlife Service drew upon biological information on the bear, careful consideration of whether the bear can adapt to new habitat conditions, over 30 years of actual sea ice observations, and dozens of studies and models on sea ice.

4(d) Rule and Marine Mammal Protection Act

In making the decision to list the polar bear as a threatened species, Kempthorne also announced he was using the authority provided in Section 4(d) of the ESA to develop a rule that states that if an activity is permissible under the stricter standards imposed by the marine Mammal Protection Act, it is also permissible under the Endangered Species Act with respect to the polar bear. This rule, effective immediately, will ensure the protection of the bear while allowing us to continue to develop our natural resources in the arctic region in an environmentally sound way.

The conservation measures provide that the production, interstate sale, and export of native handicrafts by Alaska natives may continue and that the subsistence harvest of polar bears is not affected.

ESA Not Intended to Regulate Global Climate Change

In making the announcement today, Secretary Kempthorne reiterated President Bush’s statement last month that the ESA was never intended to regulate global climate change. “Listing the polar bear as threatened can reduce avoidable losses of polar bears. But it should not open the door to use of the ESA to regulate greenhouse gas emissions from automobiles, power plants, and other sources,” said Kempthorne. “That would be a wholly inappropriate use of the ESA law. The ESA is not the right tool to set U.S. climate policy.”
Last month President Bush said, “The Clean Air Act, the Endangered Species Act and the National Environmental Policy Act were never meant to regulate global climate change.”

He said, “There is a right way and wrong way to approach reducing greenhouse gas emissions. The American people deserve an honest assessment of the costs, benefits and feasibility of any proposed solution. Discussions with such far-reaching impact should not be left to unelected regulators and judges but should be debated openly and made by the elected representatives of the people they affect.” Kempthorne said, “This Administration has taken real action to deal with the challenges of climate change.”

Our incentives for power production from wind and solar energy have helped to more than quadruple its use. The President explained we have worked with Congress to make available more than $40 billion in loan guarantees to support investments that will avoid, reduce, or sequester greenhouse gas emissions or air pollutants. In remarks on April 16, the President said that the Administration and the private sector plan to dedicate nearly a billion dollars to clean coal research and development.

Memorandum of Understanding with Canada

Kempthorne acknowledged Canada has not listed polar bears as threatened even though they have two-thirds of the world’s population of the species. “Last week, I went to Canada and explored this issue. The Canadian law is different from U.S. law with respect to endangered species, both in its criteria for listing and administrative process for making listing determinations.”

While in Canada, Kempthorne signed a Memorandum of Understanding with his Canadian counterpart, John Baird, the minister of environment, for the conservation and management of polar bear populations shared by the U.S. and Canada.

Next Steps

To make sure the ESA is not misused to regulate global climate change, Kempthorne promised the following actions:
The U.S. Fish and Wildlife Service is proposing a 4(d) rule that states that if an activity is permissible under the stricter standards of the Marine Mammal Protection Act, it is also permissible under the ESA with respect to the polar bear. This rule, effective immediately, will ensure the protection of the bear while allowing us to continue to develop our natural resources in the arctic region in an environmentally sound way.

Director Hall will issue guidance to staff that the best scientific data available today cannot make a causal connection between harm to listed species or their habitats and greenhouse gas emissions from a specific facility, or resource development project or government action.
The Department will issue a Solicitor’s Opinion further clarifying these points.

The Department will propose common sense modifications to the existing ESA regulatory language to prevent abuse of this listing to erect a back-door climate policy outside our normal system of political accountability.

Additionally, the Department will continue to:

  • monitor polar bear populations and trends,
  • study polar bear feeding ecology,
  • work cooperatively with the Alaska Nanuuq Commission and the North Slope Borough for co-management of the polar bears in Alaska,
  • provide technical assistance to the participants of the 1988 North Slope Borough Inuvialuit Game Council Agreement for the conservation of polar bears in the Southern Beaufort Sea region and monitor the effects of oil and gas operations in the Beaufort Sea region.

The proposed ESA special 4(d) rule is available at ( for a 60 day public comment period.

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8 Responses to Bye-polar Kempthorne: Polar bear IS endangered, but “Rule will allow continuation of vital energy production in Alaska”

  1. Sarah says:

    You can view the Center for Biological Diversity’s press release here:
    Kassie Siegel is the Director of the Center’s Climate, Air and Energy program, and lead lawyer and author of the polar bear listing petition.

  2. andrew says:

    Surely, you’re not saying that the preffered venue for making national climate policy is by a rulemaking by some bureaucrats huddled up in the Department of Interior? Or some lawyer looking for loopholes riddled through the clean air act? Surely the environmental community doesn’t believe we that we should undercut our nation’s economy because of a federal rulemaking. Isn’t it far more democratic to have Congress do it? Isn’t that where major choices about the nation’s future should be made?

    Get involved — write your Congressman… but don’t go out and hire a lawyer.

  3. Greg says:

    Perhaps I’m missing something with today’s announcement, but shouldn’t we be paying attention to Canada’s current listing of polars bears as a species of “special concern” but not “threatened” under their Species at Risk Registry, and the fact that 2/3 of the world’s polar bear population are in Canada not Alaska?

    No where in the Secretary of the Interior’s speech today is there any mention just how important it would be for the U.S. to urge Canada to upgrade their listing of polar bears from “special concern” to “threatened”, and cite the same reason as loss of sea ice due to global warming.

    I believe we should also be asking Secretary Kempthorne what exactly was this “Memorandum of Understanding” he signed with his Canadian counterpart, John Baird, last week in Canada. And it won’t be until August that Baird will make his decision if Canada will even bother to reclassify polar bears listing from “special concern” to “threatened” according to Canadian law.

    It seems to me the pressure should be on the Canadian government to take action, especially since they have 2/3 of the polar bear population.

    Ideally I’d like to see Canada reclassify polar bears as “threatened” and cite sea ice loss due to global warming as the reason. Then both the Canada and U.S. join forces to pass new climate change laws that keep
    an eye on emissions from oil and gas companies operating in the Canadian and American backyards of polar bears.

  4. mauri pelto says:

    Kempthorne noted that…”I have now experienced the reality that the current E.S.A. is among the most inflexible laws Congress has passed. It prevents me, as secretary, from taking into account economic conditions and adverse consequences in making listing decisions.” Seems he fails to understand that this was the whole point of the ESA that economics always trumps species, and when virtual extinction was a concern that economics had to be set aside. This does make it flexible, but standards need to be inflexible when they are the bare minimum for species survival. The same can be said thus far for climate change, economics always trumps adjusting, thank goodness for high oil prices or no change would be happening now either I suspect. Of course paying $60 for a tankful is not fun, but I did by reel (non-motorized) lawnmower.

  5. exusian says:

    Greg, since hunting pressure on polar bears in the Canadian Arctic overwhelmingly comes from US sports hunters, the US decision de facto applies to the polar bear hunt in Canada by preventing US hunters from bringing their trophies into the US. The US decision basically makes Baird’s decision moot.

    And that’s a good thing.

  6. Sun Tzu says:

    Why Do We Care If Polar Bears Become Extinct?
    This is not any sort of revelation: Polar bears declared a threatened species , but it does raise the question: Why do we care? By some estimates, 90% of all species that once existed are now extinct and new species are always taking their place. For the species that’s going to become extinct, for whatever reason, extinction is the end of it. However, for the species that remain, is the extinction of another species good or bad? When Europeans first colonized North America, there was an estimated five (5) billion Passenger Pigeons alive and well in North America. In 1914, they were extinct. Passenger Pigeons didn’t live in little groups, but huge flocks that required extraordinary quantities of hardwood forests for them to feed, breed and survive. Deforestation to build homes, create farmland and over hunting for cheap food decimated their population. The westward drive to grow the United States in the 1800s and early 1900s was incompatible with the needs of the Passenger Pigeon and they literally could not survive in the new North America being carved out by the U.S. economy. The interesting thing about the Passenger Pigeon was the impact its extinction had on another species—man. That impact was essentially none. Man continued to find ways to feed himself through agriculture and other technologies and the United States and its citizens continued to prosper from the early 20th century till today. Whether or not Polar Bears become extinct because of Global Climate Change or other reasons, we need to address the larger question of: Do we care and why? One of the ways a nation, its citizens and the global community can answer that question is addressed by John A. Warden III in Thinking Strategically About Global Climate Change. He asks some interesting biodiversity questions in his post to include How Many Species Is the Right Number and Which Ones?

  7. andrew:

    There’s already a law: the Endangered Species Act. The Department of Interior ignored it. That’s why we need courts and judges — to enforce the law. What’s the point of having Congress pass yet another law, if the new law’s simply going to be ignored again?

    — bi, International Journal of Inactivism

  8. annoyed says:

    Exusian, you don’t seem to get it. Canada bases the quotas on the polar bear population, not hunting demand from Americans, so the quotas will remain approximately the same. Because an American hunter that purchases a tag has ONE shot at hunting, and the tag is then “used”, it actually reduces the number of animals killed. Native hunters are allowed to recycle their tags until a kill is made. Since hunts are nowhere near 100% successful, all the American listing did was ensure that more bears will be killed by non-US citizens (Native Canadians) while a bunch of lawyers and politicians in DC and California (where the SCI suits are currently under way) argue the merits of a bunch of scientific surveys which are all equally plausible and all equally contradictory. So, while the environmentalists clearly fought for this to protect the bear, their true purpose (reduction of emissions) may not take effect until after their cover-up purpose (reduce American hunting and importation) has already damaged polar bear populations. I applaud the ends, but the means were among the least effective they could have chosen.