Lawsuit Challenges 11th Hour Cuts in Endangered Species Protections

But the regulations are being challenged in court by three conservation groups - the Center for Biological Diversity, Greenpeace and Defenders of Wildlife, who filed suit in federal court for the Northern District of California the day the regulations were announced, December 11.

Unless overturned in court, the regulations will take effect on January 11, nine days before President-elect Barack Obama is inaugurated and the presidency of George W. Bush comes to a close.

"These regulations undermine fundamental protections for the nation's endangered species," said Noah Greenwald with the Center for Biological Diversity. "We hope an Obama administration or Congress will act quickly to undo this 11th hour attempt to weaken our most important law for protecting wildlife."

The lawsuit argues that the regulations violate the Endangered Species Act and did not go through the required public review process. The regulations, first proposed on August 11, were rushed by the Bush administration through an abbreviated process in which more than 300,000 comments from the public were reviewed in three weeks, and environmental impacts were analyzed in a brief environmental assessment, rather than a fuller environmental impact statement.

"This is a clear example of a lame duck administration ramming through weakened regulations that are opposed by Congress and the public," Greenwald said. "When the survival of species hangs in the balance, public policy should not be rushed."

Under current regulations, federal agencies must consult with the U.S. Fish and Wildlife Service if the agencies permit, fund, or otherwise carry out actions that "may affect" endangered species, or if the Service has already determined those actions adversely affect endangered species.

Under the new regulations, federal agencies will themselves determine whether their actions are likely to adversely affect endangered species. That finding would determine whether the agency must consult with the Fish and Wildlife Service.

Announcing the final regulations, Interior Secretary Dirk Kempthorne said, "With the regulations finalized today, federal agencies must still follow all existing consultation procedures, except in specific and limited instances where an action is not anticipated to adversely impact any member of a listed species."

Polar bear clings to a shrinking ice floe in a warming world. (Photo credit unknown)

The policy would also prohibit any consideration of the impacts of greenhouse gas emissions from federal projects on endangered species such as the polar bear.

"When I announced the listing of the polar bear as threatened in May, I agreed with the President that the Endangered Species Act is not the right tool to set climate change policy," Kempthorne said. "I also announced that day that we would propose common sense modifications to the existing regulations in order to provide greater certainty that the listing would not become a back door for setting climate change policy."

Anticipating criticism of the regulations, Kempthorne said, "Importantly, the new regulations do not remove all consideration of the effects of climate change. Climate change should be considered when determining the environmental conditions under which actions are taking place.

He gave the example of a project that would pull water from a lake and it is predicted that, because of climate change, water levels in that lake will already be significantly reduced, then the expected lower lake levels should be taken into consideration, he said.

The U.S. Geological Survey has published a series of reports predicting that due to climate change loss of summer sea ice, crucial habitat for polar bears, could lead to the death of two-thirds of the world's polar bears by mid-century, including all of Alaska's polar bears.

The polar bear was listed as "threatened" under the Endangered Species Act on May 14, 2008. The conservation groups' lawsuit seeks to ensure that the polar bear receives the full protections that other species receive under the law.

The polar bear is the largest of the world's bear species and is distributed among 19 Arctic subpopulations - two of which, the Chukchi and the Southern Beaufort Sea populations, are located within the United States.

Polar bears are threatened with extinction from global warming, which is melting the Arctic sea ice where polar bears hunt for ringed and bearded seals, their primary food source.

"This rule makes a mockery of the Endangered Species Act, our nation's most important wildlife protection law," said Defenders of Wildlife Executive Vice President Jamie Rappaport Clark, who headed the Fish and Wildlife Service under the Clinton administration.

"The polar bear doesn't have time for political maneuvers. Its habitat is melting away, its food is becoming scarce and the science is clear that the cause is global warming - yet the rule this administration released today affirms that little will be done to save the species from sure extinction," said Clark.

Listing polar bears as threatened should help protect polar bear habitat from threats such as oil and gas development, which the Bush administration is aggressively pursuing in the Chukchi Sea north of Alaska and has even proposed in the pristine Arctic National Wildlife Refuge, which provides the primary land denning habitat for the species, she said.

"Instead, the administration has made it clear with its 4(d) rule that the ESA will not provide any additional protections from these and other harmful activities than those that already exist under the Marine Mammal Protection Act, and will provide no protection against emissions of greenhouse gases that are causing the rise in global temperatures that directly threaten the polar bear," said Clark.

Greenwald said, "The polar bear and numerous other species threatened by climate change need the protections of the Endangered Species Act to survive."

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