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PLF challenges unwarranted polar bear listing

California Cattlemen's Association et al. v. Kempthorne

Contact:  M. Reed Hopper

Status:  Plaintiffs' and Plaintiff-Intervenor's Reply to Motions for summary judgment to be filed on March 4, 2010.

Summary:                                                                                                            On October 2, 2008, PLF filed a complaint in the federal District Court of the District of Columbia challenging the listing of the polar bear as a "threatened" species under the Endangered Species Act. PLF represents a wide spectrum of small businesses, food producers, family farmers, property owners, employers and consumers as well as the poor and minorities nationwide who would be harmed by restrictive regulations that will likely result from the polar bear listing.

M. Reed Hopper PLF Principal Attorney

This is the first time in the history of the ESA that a thriving species has been listed based entirely on speculative models forecasting future events. The United States Fish and Wildlife Service has declared the polar bear to be threatened solely because admittedly unverified and uncertain climate models predict a declining trend in Arctic sea ice, and not because of any current decline in the polar bear population. The final rule repeatedly admonishes that forecasted population numbers and estimated time periods are not to be taken at face value. Instead, the Rule states that the trend in sea ice is worrisome and that the listing is warranted because melting sea ice will negatively affect polar bear populations, perhaps resulting in steady decline in abundance.

The problem with this conclusion is three-fold. First, the Service admits that the listing of the polar bear as threatened will not address this concern. According to Secretary Kempthorne, the polar bear is already protected by other laws and treaties and "this listing will not stop global climate change or prevent sea ice from melting" in the Arctic. In other words the listing will not address the very threat on which the listing was based.

Second, the climate models relied on by the Service undercut rather than support the listing. Relying on worst case scenarios, these models predict a 78-90% survival rate over the next 40-50 years. The government’s own studies do not forecast an irretrievable decline but anticipate that the polar bear population mid-century will be about 20,000 strong, approximately double the numbers 50-60 years ago.

And third, the current demographic data show that while global temperatures have increased over the past century, the polar bear population has also increased.  It is now the highest in recorded history: an estimated 25,000.  Three-quarters of the nineteen polar bear populations are either increasing, stable, or indeterminate in size.

In short, the polar bear is not threatened, but the listing itself threatens our already weakened economy. Although the government determined that no one can demonstrate an effect on Arctic sea conditions from any particular activity in the United States, that does not stop the environmental activists from challenging economic activity under the ESA’s citizen suit provision based on claims that greenhouse gas emissions will harm the polar bear. These suits will and are being targeted against energy producers, food producers, builders, and other industries which will drive up the cost of energy, fuel, food, transportation, and housing. That means no help to the polar bear, but deep hurt for the people.

We believe that the listing was unwarranted. It simply invites attacks on our economy and American jobs based on speculative concerns that defy actual conditions on the ground.

As a final note, starting on page 7 of the complaint, we list 18 undisputed facts that individually and collectively compel a decision not to list the polar bear as a threatened species.