Dirk Kempthorne

Can the Endangered Species Act (ESA) compel America to de-industrialize?

My colleague William Yeatman alludes to this question at the end of his post on yesterday’s Heritage Foundation symposium, “Saving the Polar Bear or Obama’s CO2 Agenda?”

The short answer is yes and no. Yes, because once the Fish and Wildlife Service (FWS) listed the polar bear as a “threatened species” on the supposition that carbon dioxide (CO2) emissions are melting the bear’s Arctic habitat, the Endangered Species Act (ESA) logically requires that people stop engaging in CO2-emitting activities. This is worrisome, because CO2 emissions come from energy use, which in turn derives from economic activity. There is hardly any economic activity in the modern world that does not, directly or indirectly, cause or contribute to CO2 emissions. Hence, almost any economic activity can be deemed to threaten the bear and, thus, violate the ESA!  

On the other hand, there are political limits to how far eco-activists can push this logic. The American people will not tolerate being regulated back into the dark ages. Al Gore and his allies know this, which is why they continually try to dress up their anti-growth agenda as a “green jobs” program.

But this means that, at a minimum, the ESA is a specter haunting our economic future, its potential for mischief held in check only by the vigilance of citizens and the political calculus of regulatory zealots.  

On May 14, 2008, when the FWS listed the polar bear as threatened, then Secretary of Interior Dirk Kempthorne claimed the agency’s action “should not open the door to use the ESA to regulate greenhouse gas emissions from automobiles, power plants, and other sources.” Why not? Well, Congress never intended for the ESA to be used as a framework for climate policy. It is not designed for that purpose. The same can be said however about the Clean Air Act, yet in Massachusetts v. EPA, the Supreme Court, unable to resist the temptation to legislate from the bench, authorized and, indeed pushed EPA to begin regulating greenhouse gases (GHGs). EPA is now busy promulgating GHG regulations and setting climate policy for the Nation.

In short, former Secy. Kempthorne was whistling past the graveyard. From day one, regulating GHGs via the ESA was the objective of the eco-litigation groups who petitioned and sued the FWS into listing the polar bear. How do I know? They said so.

CBD Playbook

The Center for Biological Diversity (CBD) was the lead group petitioning the FWS and suing the Department of Interior to list the polar bear under the ESA. Along with Greenpeace and Natural Resources Defense Council, CBD filed the petition on “Kyoto Day” — February 16, 2005, the day the Kyoto Protocol went into effect. In the fall 2007 issue of Natural Resources & Environment, CBD’s Senior Attorney (Brendan Cummings) and Climate Program Director (Kassie Siegel) plainly stated their intent to use the ESA to suppress U.S. fossil energy use.

Consider this excerpt:

In the seminal ESA case, Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978), the Supreme Court held that the ESA’s unequivocal mandate that federal agencies “insure” that their actions do not “jeopardize” any species protected by the statute meant that a multimillion dollar dam project already near completion could not proceed because its completion threatened the existence of the snail darter, a small endemic fish of no know economic value. . . . In the nearly three decades since TVA was decided, courts enforcing the ESA have halted such activities as logging to protect threatened owls, commercial fishing and military activities to protect marine mammals, oil and gas development to protect wolves and grizzly bears, pesticide authorizations to protect imperiled salmon, and numerous other habitat-damaging activities that threatened a particular protected species. Whether GHG emissions can be halted to protect polar bears will be a test of the statute’s continuing relevance in the twenty-first century. [Emphasis added]

Ominously, Cummings and Siegel don’t say that the continuing relevance of the ESA depends on its ability to reduce or limit GHG emissions, but to “halt” them.

The authors go on to discuss Sections 7 and 9 of the ESA, and how those provisions can be used to block energy projects and control energy use.

Section 7 directs all federal agencies to consult with the FWS to ensure that “all actions authorized, funded, or carried out by such agencies are ‘not likely to jeopardize the continued existence’ or ‘result in the destruction or adverse modification of habitat’ of any listed species.” This means that “if the project [authorized, funded, or carried out by an agency] is determined to jeopardize a listed species or adversely modify its critical habitat, the statute can trigger modification or cancellation of the project so as to avoid such impacts.”

Quoting from the Code of Federal Regulations, Cummings and Siegel explain that “jeopardize” means “to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers or distribution of that species.” Hence, if an action “appreciably” contributes to the GHG emissions believed to cause global warming, “that action could then be found to jeopardize a listed species.”

So which agency actions appreciably contributing to GHG emissions might be controlled or stopped under the ESA? The setting of fuel economy standards and the granting of offshore oil and gas leases are prime candidates, Cummings and Siegel opine, but many others would also come under carbon discipline:

The GHG emissions from numerous other actions present in the approval of new coal-fired power plants, oil shale leasing programs, limestone mines for cement manufacturing, and dozens perhaps hundreds of other projects are individually and cumulatively having an appreciable effect on the atmosphere. These are all agency “actions” as defined by the ESA, which “may affect” listed species, and therefore trigger the consultation requirements of Section 7.

The authors conclude: “There is no reason GHG emissions, which jeopardize polar bears, should be treated any differently than pesticides that harm salmon or logging that harms owls.”

Eventually, the ESA would also impose carbon discipline on the private behavior of firms and individuals. Section 9 of the ESA prohibits “any person,” including private individuals and corporations, from “taking” any endangered or threatened species. “Take” has several meanings, including “harass,” “kill,” and “harm.” “Harm” includes “significant habitat modification or degradation where it . . . injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.” Polar bears breed, feed, and shelter on ice floes. If GHG emissions are melting the ice, then GHG emissions are “taking” polar bears. To repeat, almost any economic activity by almost any private entity directly or indirectly causes GHG emissions.

Finally, Cummings and Siegel argue, “The ESA requires that a recovery plan for the polar bear be prepared and implemented. There is no hope for recovery, much less survival, of the polar bear absent substantial reductions in GHG emissions. Any legally adequate recovery plan must therefore include mandates to reduce such emissions” (emphasis added).

So there you have it, straight from the source. The objective of listing the polar is to set the predicate for “mandates” to reduce GHG emissions.

What Next?

Under the ESA, a “threatened” species is one that is expected to become “endangered” in the future whereas an “endangered” species is one that currently faces extinction in part or all of its range. Although the ESA prohibits “takings” of both threatened and endangered species, if the species is listed as “threatened,” FWS has the option, under ESA Sec. 4d, “to relax the normal ESA restrictions to reduce conflicts between people and the protections” provided by the Act. On the same day that Secy. Kempthorne listed the polar bear as threatened, he issued a 4d rule that allows both “subsistence” hunting by native Alaskans and “environmentally sound” development of natural resources by oil and gas companies.

In May 2009, Obama Administration Interior Secretary Ken Salazar reaffirmed Kempthorne’s 4d rule, explaining that, “The Endangered Species Act is not the proper tool to deal with a global issue — with global warming,” adding: “We need to move forward with a comprehensive climate change and energy plan we can be proud of.” In addition to preferring “comprehensive” climate legislation à la Waxman-Markey, Team Obama may have wanted to protect EPA’s newly won power to call the shots on climate policy.

As you might expect, the CBD is challenging the 4d rule in the D.C. Circuit Court of Appeals, arguing that the Department of Interior should have listed the polar bear as “endangered.” Greenwire (subscription required), the online news service, comments: “If they [the polar bears] were reclassified as endangered, the 4(d) rule would no longer have any bearing and environmental groups would have greater leverage to argue that the government should require reduced greenhouse gas emissions in order to protect the bears.”

Several business groups (American Petroleum Institute, the U.S. Chamber of Commerce, National Mining Association, National Manufacturers Association, American Iron and Steel Institute)  and the State of Alaska have intervened in support of the 4d rule, arguing that the ESA should not be used to regulate GHGs. They may prevail, but it is entirely possible that, by listing the polar bear as threatened, the Department of Interior has painted itself into a legal corner.

Nonetheless, I see a bright future ahead. Recall that on June 10, all 41 Senate Republicans and six Democrats voted to overturn EPA’s Endangerment Rule, the trigger and precedent for a cascade of GHG regulations under the Clean Air Act. The resolution of disapproval lost by a mere four votes (47-53), and only because Senate Majority Leader Harry Reid (D-NV) promised fence-sitters an opportunity to vote on Sen. Jay Rockefeller’s competing legislation to prohibit EPA regulation of GHGs from stationary sources for two years. It is a promise the Honorable Mr. Reid has not yet kept, though there might be a vote in the lame duck.

My point, though, is that the next Congress is expected to include many more members opposed to cap-and-trade and other stealth energy taxes. ESA regulation of GHGs is potentially much more costly than cap-and-trade proposals like Waxman-Markey. So in all likelihood, the next Congress will have even less patience than the current one with climate hysteria-inspired regulatory excess.