Judge asks federal government to explain polar bear listing

UPDATE:

Date: Friday Nov. 5, 2010 7:17 AM ET

ANCHORAGE, Alaska — A federal court judge is giving the Interior Department until Dec. 23 to explain why polar bears are listed as a "threatened" species instead of the more-protective "endangered."

The written order issued Thursday by U.S. District Judge Emmet Sullivan in Washington, D.C., follows an October hearing on multiple lawsuits filed over the listing.

Sullivan writes that the U.S. Fish and Wildlife Service erroneously concludes that a species must be in imminent danger of extinction to be declared endangered. The judge says that runs counter to the plain meaning of the Endangered Species Act.

Former Interior Secretary Dirk Kempthorne in 2008 declared polar bears were threatened because of the rapid disappearance of the Arctic sea ice.

The state of Alaska argues that polar bears should not even be listed as threatened.

Lawyers for the federal government, the state of Alaska, and oil and gas interests were in court Wednesday to fight efforts by a coalition of environmental groups trying to force the Obama administration to put polar bears on the endangered species list, not just list them as threatened.

A U.S. district judge held off on a full hearing, saying he would instead like the federal government to further explain what exactly the U.S. Fish and Wildlife Service used in the Endangered Species Act to make its determination that polar bears are merely threatened, not endangered.

U.S. District Judge Emmet Sullivan said he would issue a written order shortly, but he said that the government is likely to have about 30 days to explain how it arrived at its decision.

At issue is the definition of a threatened and endangered species, and how the government arrived at its decision on polar bears. The distinction dates back more than three decades, to when the Endangered Species Act was written, said Clifford Stevens, a Justice Department attorney representing the Interior Department's position in the case. A threatened species is likely to become endangered, not extinct, the government argued.

"What they were concerned about was when all they had was the endangered category ... it was too close," Stevens said. "So they added this category so you could take action further back in time."

The environmental organizations, however, led by the Center for Biological Diversity and including Greenpeace and the Natural Resources Defense Council, argued that polar bears are already so threatened that there's no way they could be considered anything but endangered.

"This isn't in the distant future, it's happening now," said Kassie Siegel of the Center for Biological Diversity.

The rapid melting of Arctic sea ice has caused a decline in polar bear populations, including those in Alaska, the center said. If the Arctic continues its current melting trend, worldwide polar bear populations could decline by as much as two-thirds by 2050. They could be near extinction by the end of the century.

The environmental coalition is pursuing a separate effort within the same case to force the Obama administration to reconsider a rule that prohibits the Endangered Species Act from being used as a tool to regulate the greenhouse gases that cause global warming.

When it first listed the bears as threatened in 2008, the Bush administration also issued a decision saying that the Endangered Species Act can't be used to regulate greenhouse gases emitted by sources outside of the polar bears' habitat. If the bears are found to be endangered, however, that could open the door to using the Endangered Species Act to regulate greenhouse gases.

Sullivan will hold a separate hearing in January on that portion of the case.

Read more: http://www.kansascity.com/2010/10/20/2335642/judge-asks-federal-government.html#ixzz12zr6wA98