How can polar bears be saved, court asks?

McClatchy NewspapersFebruary 23, 2011 

WASHINGTON — A central question about the Endangered Species Act was behind the legal wrangling Wednesday in a federal courtroom: What, if anything, can be done to save polar bears as the earth warms and sea ice recedes?

Courts have done plenty in the past to protect endangered or threatened species, including putting a halt to logging or construction, noted U.S. District Judge Emmet Sullivan. But, he asked, what should be done when the primary threat to polar bears is the loss of their sea ice habitat?

"How do we fix that?" he asked Kassie Siegel of the Center for Biological Diversity, the lead lawyer for the environmental coalition that's seeking to change polar bears' status from merely threatened to endangered.

"Deep and rapid greenhouse gas reductions," Siegel said.

Her answer got at the heart of what environmental groups hope to do with their lawsuit: Force the Obama administration to reconsider a rule that prohibits using the Endangered Species Act as a tool to regulate greenhouse gases.

Congress and the Obama administration so far have failed to enact legislation or rules that regulate greenhouse gas emissions. Sullivan's question suggested that he, too, was skeptical about what more the courts could do. Already, he's asked the U.S. Fish and Wildlife Service to further explain how it made its determination in 2008 that polar bears are merely threatened, not endangered.

Wednesday, environmentalists argued that the bears should be considered endangered, and that the Fish and Wildlife Service misread its own science in determining they were threatened. Based on the projected loss of sea ice in the coming decades, polar bears already are so threatened that they should be considered endangered, they argued.

The state of Alaska, which opposes even the "threatened" listing, also disputed how federal scientists interpreted their research, albeit from a slightly different point of view. The state disputes that the Fish and Wildlife Service could derive population estimates from sea ice projections, said Murray Feldman, the state's Boise, Idaho-based attorney in the case.

The state also holds the position that since polar bears currently have a robust population that covers much of their historic territory, they shouldn't be listed as threatened or endangered like species that face more easily addressable threats to their survival.

"What, under the law, is the appropriate management framework for this species?" Feldman said.

That polar bear habitat is shrinking isn't disputed, but it's less clear how fast and what it will mean to the polar bear population, currently estimated at 20,000 to 25,000, in the future.

Environmentalists argued Wednesday in court that the ice is melting even faster than models predict, an assertion that many researchers support. Arctic sea ice is declining at an increasing rate all months of the year, according to the National Snow and Ice Data Center in Colorado. The decline is stronger in summer months, and researchers who study climate and sea ice anticipate that at some point in the near future, the Arctic Ocean will lose its ice cover completely in late summer.

Polar bears spend most of their lives on sea ice and use it to travel, breed and hunt, especially for their main prey, ringed seals, which are the only seals that can live in waters completely covered by ice. If the Arctic continues its melting trend, polar bear populations worldwide could decline by as much as two-thirds by midcentury. They could be near extinction by the end of the century.

Their loss would be significant to the Arctic ecosystem, said Brendan Cummings of the Center for Biological Diversity, as well as symbolic. Putting legal issues aside, listing polar bears as endangered would force the government to grapple with the consequences of climate change, he said.

"It's a recognition that global warming is not just a distant threat, but in fact a real threat," he said.

Government lawyers, though, said that even with their status listed as threatened, much was being done to protect the bears, including developing critical habitat boundaries. Their status as a threatened species also prompted additional study of the bears, said Clifford Stevens, a Justice Department attorney who's representing the Interior Department's position in the case

"This is not a 'no-list' situation; the government has listed the species," he said. "It has done exactly what Congress asks be done: species that face likely endangerment in the future be listed as threatened."

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