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
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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)