On Thin Ice

It's hard to tell: is this a win for the wildlife protection community?
It's a huge win. The administration tried to diminish it by saying it doesn't mean anything, but the law is the law. The courts will have to implement the law, even if Kempthorne says he's not willing to. It still has problems, and there are parts we'll be fighting over the following weeks and months, but I don't want to diminish the importance of this decision.

What will you contest?
There's another provision of the ESA called the "prohibition of the take," meaning harming, harassing, killing and shooting of usually individual animals. That's the part where they've passed a regulation that will be effective immediately, which says that because the Marine Mammal Protection Act provides adequate protections for the bear, there's no need for the take prohibitions of the ESA to apply. So now they're saying that if you're permitted under the MMPA, that's good enough under the ESA. That's the key part for threatened species. They cannot issue that kind of take prohibition for endangered species, which would be the next step.

Do you accept Kempthorne's argument that the bear is not yet in danger of becoming extinct?
No. Three years ago, before the ice started melting as rapidly as it has, one could make that argument. When we petitioned it we suggested it be listed as either threatened or endangered. But in the three years since, there has been nothing but doom and gloom for the bear, and projections for the amount of ice melting we'll see in 2008 are frightening. The bear should be listed as endangered, and the Marine Mammal Commission, which is an independent federal agency that provides Congress with scientific expertise on marine mammal decisions, advised [the Department of the Interior] to list the bears, at least in Alaska, as endangered and not just threatened. But really, all the bears in the world, and not just the United States, should be listed as endangered.

Is Kempthorne correct in saying the polar bear is being used to affect all global warming policy?
This decision is about the polar bear. But as goes the bear, as goes the ice, so goes the planet. So if we can save the bear, we can save ourselves from the worst impacts of global warming. So yes, if we can direct society's energies and the power of our legal system toward saving the polar bear, that will have profound effects for the rest of us.

What real effect will this decision have on polar bears? What's in the bears' future?
Things for the bear are going to get worse before they get better. We know that with the amount of extra energy in the climate system, it's going to get hotter, more ice will melt, and more polar bears are going to be incredibly stressed. In Alaska polar bears are going to be stranded on land, hungry and wandering around. If they will have any hope of surviving, we need to protect that habitat, which means not auctioning it off to oil companies. Ultimately, if we don't save the polar bear, we don't save ourselves, unless we as a nation, Congress and the president take seriously global warming and start doing something about it. Of course, that goes much further than the Endangered Species Act and the polar bear. But to protect the bear right now, it needs the specific protections the ESA can and should provide to protect its habitat to help it through the very bumpy decades ahead of it.

© 2008