In 2008, the Bush Administration, responding to litigation from
an environmental group, listed the polar bear under the Endangered
Species Act (ESA). Bush Secretary of the Interior Dirk Kempthorne
also made some changes to the implementation of the ESA in order to
limit the adverse consequences. But now, the omnibus appropriations
bill, first passed by the House and now being debated in the
Senate, seeks to reverse these common sense limitations.
If successful, this revised polar bear policy would greatly
threaten economic growth and serve as a powerful anti-stimulus
measure, not just in the polar bears' Alaskan habitat but
throughout the United States. These rule changes are a costly and
unnecessary form of backdoor global warming policy and have no
business in a massive spending bill that is headed for quick
passage with limited debate. With such drastic implications for the
nation, the Senate should, at a minimum, fully debate the pros and
cons of such a policy.
History of the ESA: More Economic Harm
Than Environmental Good
Enacted in 1973, the ESA authorizes the Department of the
Interior (DOI) to create a list of species considered endangered or
threatened. Once a new species is listed, the statute requires DOI,
working with other federal agencies, to formulate a recovery plan
that includes any and all actions deemed necessary to protect the
species and its habitat. Broad citizen suit provisions allow
environmental activist groups to force DOI to enjoin any activity
alleged to be in violation of the provisions of the ESA, to list
additional species, or to expand provisions for already-listed
Notwithstanding its laudable goal of protecting species, the ESA
has proven to be a flawed approach that has only gotten worse after
three decades of judicial interpretation. Some 1,300 species are
listed, but very few have actually recovered to the point of being
de-listed, and only 5 percent are more than 50 percent recovered.
While doing little to protect species, the ESA's provisions have
been highly successful in curtailing economic activity in the
vicinity of the designated habitat for the 1,300 species.
The ESA, Global Warming, and Polar
Such ulterior motives are clearly a part of the push to list the
polar bear. Its global numbers have actually doubled, from an
estimated 8,000-10,000 in 1965-1970 to 20,000-25,000 today.
Unfortunately, the requirements for listing have never been
rigorous. In the case of polar bears, listing was based on
speculation that, according to computer models, continued global
warming will reduce the future amount of Arctic summer ice upon
which the bears rely. In this way, the ESA is being used to
implement global warming policy.
Among its many requirements, the ESA states that "each federal
agency shall, in consultation with and with the assistance of the
Secretary, insure that any action authorized, funded, or carried
out by such agency is not likely to jeopardize the continued
existence of any endangered species or threatened species or result
in the destruction or adverse modification of habitat." These
so-called Section 7 consultations routinely add delays to economic
activities near endangered species and sometimes block them
Most directly, the polar bear listing could curtail energy
production in Alaska. This would be unfortunate, as Alaskan oil and
natural gas potential is tremendous. A 2008 U.S. Geological Survey
study estimated there are 40 billion barrels of undiscovered oil
above the Arctic circle-which would nearly double America's proven
reserves-as well as tremendous volumes of natural gas.
The impacts of the polar bear listing stretch well beyond
Alaska, though locking up Alaskan energy would be bad enough.
Carbon dioxide, the ubiquitous byproduct of fossil fuel combustion,
is the agent DOI blames for the warming that supposedly shrinks the
ice and thus harms the bears. Consequently, any activity producing
or using energy-building a new bridge in Alabama, opening a factory
or power plant in Arizona, expanding a dairy operation in New York,
constructing a school in Idaho-could invoke the Section 7
consultation process. Bottom line: Environmental activists could
use the ESA to hold up any of thousands of projects across the U.S.
This would include many if not all of the "shovel ready" projects
that are funded in the stimulus package.
Anticipating these adverse economic impacts, Secretary
Kempthorne took several steps to address them. This included a rule
to limit the Section 7 consultations to those where the cause and
effect between the activity in question and the harm to species is
not tenuous (thus excluding carbon dioxide and other greenhouse gas
emissions from any individual source) and a rule specifically
exempting new global warming considerations with regard to the
polar bear listing.
Congressional Attempts to Undo These
Now, Section 429 of the House-passed Omnibus Appropriations Act
would allow DOI to reverse these rules for the polar bear listing
and, worse, to do so without the customary notice and comment
rulemaking. In other words, the provisions here would allow DOI to
make the change and do so with even less transparency and
accountability than usual.
If this is done, then every activity that involves energy-from
expanding a power plant to starting a farm-could get caught up in
ESA red tape. The long-term economic impacts would be severe, and
ironically the shorter-term effects would undercut the thrust of
the stimulus package to spur an economic recovery.
Consider all new construction projects as well as efforts to
create or expand all but the very smallest of businesses-the very
kinds of things that are both a part of the stimulus package and
that in any event are necessary for economic growth. Assuming the
proposed changes are enacted, then all of the federal agencies
involved in one way or another in such projects-for example, the
Environmental Protection Agency for the many things that require
EPA permits-will have to engage in Section 7 consultations with the
Department of the Interior over the global warming implications. At
the very least, such projects will be held up by bureaucratic
delays, thereby creating opportunities for environmental groups and
others to initiate litigation against them. Aside from delays,
which could stretch into years in some cases, some projects could
end up being scaled back in an effort to mitigate the supposed
adverse impact, and others could be stopped entirely.
Beyond being bad policy in itself, the very fact that this
complicated and far-reaching change is being done in an omnibus
bill with precious little opportunity for debate strongly urges
that these provisions should not be rushed into law.
The American people do not need a costly backdoor global warming
policy implemented through the misuse of preexisting ESA authority
never intended for that purpose. But at no time is such a policy
more harmful than in the midst of a severe recession. The adverse
economic impacts of ill-advised global warming measures are clear
and are a big part of the reason why Congress has yet to directly
enact any such measures. Doing it indirectly via the ESA and
quietly tucking it into the massive omnibus appropriations bill now
moving through the Senate would be just as damaging. The Senate
should allow and encourage a full debate on this pernicious policy
rather than cramming this legislation through with little to no
discussion of the economic perils it would bring to the nation's
Lieberman is Senior Policy Analyst in Energy and the
Environment in the Thomas A. Roe Institute for Economic Policy
Studies at The Heritage Foundation.