Can a nonprofit force the US government to change its policy on global warming?

From the FEB/MAR 2006 issue of Seed:

polarbop.jpg Credit: Steffen Foerster

Elkhorn coral and polar bears appear to have little in common, but they share the same lawyers.

In an effort to force the US government to reduce carbon emissions, the Center for Biological Diversity (CBD) has petitioned to have the creatures added to the federal endangered species list. Since the Endangered Species Act requires the US to protect the habitat of any listed species, and the sea ice and oceans where polar bears and coral make their homes are threatened by global warming, adding the two to the list would, theoretically, force the retooling of all federal policy contributing to climate change.

CBD hopes its strategy will gain a foothold for global warming science in a hostile political environment. But skeptics say the likelihood of increasing fuel economy standards, ditching the Clear Skies Initiative, abandoning Arctic National Wildlife Refuge drilling for good, repealing the Energy Policy Act of 2005 and sharply controlling fossil fuels production—all to save an animal that lives underwater and looks like a rock—would appear to have a polar bear’s chance in hell.

It’s “highly unlikely that the listing of these species would, by itself, lead to any meaningful reductions in carbon emissions in the US or anywhere else,” said Patrick A. Parenteau, director of the Environmental and Natural Resources Law Clinic at Vermont Law School.

Environmentalists have commonly made use of the Act to shut down logging or construction projects, but the idea of leveraging it to effect changes in climate policy is new.

“This is certainly a creative approach by CBD,” said Parenteau, who was special counsel to the Fish and Wildlife Service (FWS) for the memorable spotted owl case of the early 1990s.

Critics charge that FWS, one of two agencies that can add to the list, has become politicized: Since President Bush took office, the agency has not filed to protect a single new species without its hand being forced. “At the political level, the Fish and Wildlife Service has become a captured federal agency,” said Brent Plater, a lawyer for the CBD.

But under the jurisdiction of the National Marine Fisheries Service, the other listing body, the process of protecting the corals is moving smoothly. The FWS initially refused to review the polar bear petition, leading the CBD, Greenpeace and the National Resources Defense Council to file suit against the agency December 15.

Even if the species are added, it may be irrelevant: Congress is considering legislation by Richard Pombo (R-CA)—whose major campaign contributor is the oil and gas industry—that would eliminate “critical habitat” protections for endangered species and hand protection decisions to a political appointee, among other things.

Whatever happens, the CBD’s petition is sure to bring recognition to the link between climate change and species extinction. “It’s a fairly straightforward case,” said Plater. “It just requires folks to recognize that the threats to species are sometimes more subtle.

Originally published March 9, 2006

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