The Sacramento Bee reports today that when it comes to environmental cases in cases in federal court, the Bush Administration appears to have the worst losing percentage of any administration over the past three decades. As NRO’s Jonathan Adler explains today, that percentage is not going to get any better when the Interior Department is forced to defend its novel decision to not designate a “critical habitat” when listing the polar bear as “threatened” pursuant to the Endangered Species Act. Adler writes:
The ESA bars the government from authorizing, funding, or undertaking actions that are “likely to jeopardize the continued existence” of a listed species or contribute to the loss of its critical habitat. According to the [Center for Biological Diversity] and its environmentalist allies, this means that the federal government must address greenhouse-gas emissions from federally permitted facilities, because such gases contribute to the climatic changes that ultimately threaten polar bears. The result of such an interpretation of the ESA could be quite severe limitations on greenhouse-gas emissions from power plants, industrial facilities, and federally permitted development projects.
The administration argues, somewhat plausibly, that there is no cause to impose restrictions on greenhouse gases through the ESA because scientific research “has not established a causal connection between specific sources and locations of emissions to specific impacts posed to polar bears or their habitat.” … The problem for the administration is that federal courts have been somewhat reluctant to interpret the ESA so narrowly.
It is possible that both the CBD and Adler are understating the reach of the polar bear listing. More than just “power plants, industrial facilities, and federally permitted development projects” can be affected by the ESA. Section 7 of the ESA requires all federal agencies to consult with either the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Services (NMFS) for “any action authorized, funded, or carried out.”
So let’s say the Department of Health and Human Services issues a new Medicare regulation that they believe will help Americans live longer. Well, scientists at MIT have concluded that even the least carbon intensive Americans, the homeless, emit 8.5 tons of carbon a year. So, by prolonging the lives of Americans, the DHS’s new regulations would be helping to increase carbon emissions and, therefore, would be contributing to the destruction of the polar bear’s habitat … a clear ESA violation.