The Battle May be Over, but What About the War? Examining the ESA in the Crusade Against Global Warming After In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation

Villanova Environmental Law Journal, Sep 2014

By Alanna Kearney, Published on 08/01/14

A PDF file should load here. If you do not see its contents the file may be temporarily unavailable at the journal website or you do not have a PDF plug-in installed and enabled in your browser.

Alternatively, you can download the file locally and open with any standalone PDF reader:

https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1358&context=elj

The Battle May be Over, but What About the War? Examining the ESA in the Crusade Against Global Warming After In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation

Litigation The Battle May be Over, but What About the War? Examining the ESA in the Crusade Against Global Warming After In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation Alanna Kearney 0 1 2 0 Alanna Kearney , The Battle 1 This Casenote is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Environmental Law Journal by an authorized editor of Villanova University Charles Widger School of Law Digital Repository 2 Against Global Warming After In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule - 2014] THE BATTLE MAY BE OVER, BUT WHAT ABOUT THE WAR? EXAMINING THE ESA IN THE CRUSADE AGAINST GLOBAL WARMING AFTER IN RE POLAR BEAR ENDANGERED SPECIES ACT LISTING AND SECTION 4(D) RULE LITIGATION "The ESA is not some mystical expression of legislative wonder at the miracle of life; nor is it an economic apocalypse. The ESA tries to do something mankind has not tried before: save other species and allow them to exist for their own benefit regardless of their value to humanity. It attempts great things; sometimes with success, usually with failure."' I. INTRODUCTION The controversy surrounding global warming has undoubtedly shifted during the last decade, and, as a result, the conversation no longer centers on whether humans are causing palpable impacts on the environment through global warming.2 Rather, the question now is: What can be done about it?5 One measurable effect of global climate change is seen in the polar bear's steadily dwindling population, as a record eight out of nineteen polar bear subpopulations are now in decline.4 Polar bears are "ice-obligate" in that they 1. Ray Vaughan, Proofof 'ProhibitedTakings' Under the EndangeredSpecies Act, 27 AM. JUR. PROOF OF FACTS 3D 421, ยง 1 (1994) (describing ESA's pros and cons). 2. See Is Global WarmingReal?, NAT'L GEOGRAPHIC, http://environment.nationalgeographic.com/environment/global-warming/gw-real/ (last visited Oct. 15, 2013) (discussing global climate change's reality and shift in controversy); see also Climate Change Impacts and Adapting to Change, ENVTL. PROT. AGENCY, http://epa. gov/climatechange/impacts-adaptation/ (last updated Sept. 9, 2013) (describing areas impacted by global climate change); Climate Change Science Overview, ENvrL. PROT. AGENCY, http://epa.gov/climatechange/science/overview.html (last updated Sept. 9, 2013) (stressing recent climate change cannot be explained by natural causes alone). 3. See America's Climate Choices, NAT'L RESEARCH COUNCIL (2011), availableat http://dels.nas.edu/Report/America-Climate-Choices-2011/12781 (detailing reasons for immediate action to combat global warming). The National Research Council noted, "[A]s scientific knowledge has grown, this debate [about global warming] is moving away from whether humans are causing warming and toward questions of how best to respond." Id.; see alsoMaggie Kuhn, Climate Changeand the PolarBear: Is the EndangeredSpecies Act Up to the Task?, 27 ALASKA L. REv. 125, 126 (2010) (describing shift in conversation on global warming). 4. See PolarBear Status Report, POLAR BEARS INT'L, http://www.polarbearsinternational.org/science/polar-bear-status-report (last visited Oct. 15, 2013) (describing statistical reports on polar bear's nineteen subpopulations). As a note, the polar bear's subpopulations are distinguishable from the ESA's distinct population (529) 530 VILLANOVA ENVIRONMENTAL LAw jouRNAL [Vol. XXV: p. 529 depend entirely on Arctic sea ice for species survival; specifically, polar bears have evolved to rely on sea ice for hunting, feeding, seasonal migration, denning, and breeding.5 Some experts predict that by mid-century the Arctic Ocean will be almost completely free of sea ice during the summer season, with some predicting this may occur as soon as the year 2020.6 Consequently, reports estimate that the polar bear may be wholly extinct by the end of this century, and more than two-thirds of the world's polar bear population will be lost by the year 2050.7 In light of these estimations, a multitude of individuals and interest groups have engaged in a lengthy litigation process that hinges on the polar bear's listing as a "threatened species" under the Endangered Species Act (ESA or Act), primarily in the District of Columbia Circuit case of In re Polar Bear Endangered Species Act Listingand Section 4(d) Rule Litigation(In re PolarBear V).8 The polar segments and are not to be equated. See In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation (In re PolarBear V), 709 F.3d 1, 6 (D.C. Cir. 2013) (clarifying potential confusion as to language of the polar bear subpopulations). According to the International Union for Conservation of Nature Polar Bear Specialist Group, eight polar bear subpopulations are now in decline, three are stable, and one is increasing, compared (...truncated)


This is a preview of a remote PDF: https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1358&context=elj

Alanna Kearney. The Battle May be Over, but What About the War? Examining the ESA in the Crusade Against Global Warming After In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation, Villanova Environmental Law Journal, 2014, pp. 529, Volume 25, Issue 2,