The Endangered Species Act (ESA) is expansive and has been described as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation." Tennessee Valley Authority v. Hill, 437 U.S. 153, 176 (1978). The Fish and Wildlife Service's (FWS) recent decision to list the polar bear as threatened under the ESA just might prove this point. 73 FR 28212 (May 15, 2008).

FWS' final rule listing the polar bear is based on its finding that the sea ice that constitutes the bear's habitat is declining and is expected to continue to decline. As a result of such continued loss, FWS determined that the polar bear will become endangered within the foreseeable future throughout all of its range. 73 FR at 28212.

FWS acknowledges that the decline in sea ice is due in part to human activity. Id. at 28244. What it is not willing to concede, however, is that the listing can be used to interfere with U.S. climate change policy though use of the ESA's consultation obligation, which requires federal agencies to consult with the FWS to ensure that their actions are "not likely to jeopardize the continued existence of any endangered species or threatened species." ESA § 7(a)(2); 16 U.S.C. § 1536(a)(2).

To try and stop this from happening, FWS simultaneously issued a "Special Rule" that creates an exemption from the ESA's consultation requirement for federal actions involving greenhouse gas emissions and activities occurring outside Alaska. 73 FR 28306 (May 15, 2008). FWS' argues that such an exemption is legal because there is insufficient data to establish a causal connection between greenhouse gas emissions from a new facility and impacts to polar bears.

Environmental groups wasted little time suing FWS in an attempt to vacate the Special Rule. See it here. And there is a good chance that they will succeed given the shaky nature of FWS' causation argument. See, e.g., Washington Toxics Coalition v. EPA, 2002 U.S. Dist. LEXIS 27654 (W.D. Wash. July 2, 2002.) (Court found that causation necessary to trigger the consultation requirement does not require a high decree of certainty.)

Thus far it remains to be seen whether FWS' fears will be realized that as a result of listing the polar bear, "literally every agency action that contributes greenhouse gases to the atmosphere would arguably result in consultation with respect to every listed species or critical habitat that may be affected by climate change." 73 FR at 28313. Moreover, this issue is not going away any time soon. The Center for Biological Diversity (CBD) notified the FWS on May 27 of its intent to sue because FWS has not yet acted on CBD's petition to list the Pacific walrus that it alleges is also imperiled by global warming. CBD News Release (May 27, 2008.) The release is available here.)