Is global warming killing the polar bears? In May 2008, the federal Endangered Species Act (ESA) list listed the polar bear as a threatened species. However, “some scientists argue that polar bear populations actually have increased since hunting restrictions were initiated in the early 1970s,” reported CNSNews on September 16th.
According to the World Wildlife Fund, an international organization that works to protect endangered species, the population patterns of the approximately 20 distinct polar bear populations in existence do not show a necessarily temperature-linked decline.
American Enterprise Institute (AEI) hosted environmental intellectuals in a discussion of conservation strategies on September 15th. Presenters focused largely on the Endangered Species Act (ESA), specifically its limitations and flaws as contrasted with the often positive presentation of the media.
The effect of climate change is uncertain, said J.B. Ruhl, a professor of property and environmental law at Florida State University’s College of Law, adding “we really just don’t know what four degrees is going to do ecologically.” The “macro story,” he stated, is that greenhouse-gas emissions contributed to carbon emissions, which contribute to the endangering species. Yet the ESA, he pointed out, is set up in a much more specific way, requiring the precise identification of cause and effect and “we just do not have the science to do that.”
Rafe Peterson also mentioned the problems with ESA’s requiring the use of the “best available science.” Peterson is a law partner at Holland & Knight L.L.P who focuses on environmental compliance and litigation. He suggested that sometimes, instead of trudging forward with limited knowledge, maybe the ESA should “stop and get more science.” Ruhl then mentioned his “very modest thoughts about how we might reform the Endangered Species Act,” saying that we should assist species on the ground. That is, he argued that the ESA should focus on assisting species in adapting to the climate changes, and then if the climate change stops harming their environment, at that point they can think about recovery efforts.
The Environmental Protection Agency (EPA) and the ESA, according to Peterson and Brian Mannix, are too often entrenched in sticky litigation to be able to achieve much positive action. “In 30 years of trying, EPA has never successfully concluded even a single consultation with the U.S. Fish and Wildlife Services,” reported Mannix, who served as an associate administrator at the EPA from 2005-2009.
“How do we get the ESA out of the courts?” asked Peterson, labeling a fundamental problem of the ESA as “paralysis by analysis.” He suggested one remedy would be to take away the incentives to litigate, such as the awarding of fees.
The problem, argued Peterson, is that both sides are “so caught up in fighting,” and so issues of recovery “have not been used to their fullest potential.” The focus of the ESA has always been to prohibit certain activities, said Peterson, when they should be encouraging environmentally-beneficial activities. He concluded that the government should give positive incentives, like tax credits, rather than negative incentives.
In California v General Motors, GM and five other major auto makers were sued for “creating, and contributing to, an alleged public nuisance—global warming.” The case was pending appeal until California dismissed its appeal earlier this year. In light of the economic hardships the auto industry is already facing, it is scary to think that they might face financial penalties for contributing to an alleged nuisance.