Endangered Species Act Law Alert: Secretary Salazar Retains Endangered Species Act Conservation Rule for Polar Bears
5/13/2009

By Ryan Steen and Jeffrey Leppo

On May 8, 2009, U.S. Department of the Interior Secretary Ken Salazar announced that he will retain a special rule issued under Section 4(d) of the Endangered Species Act ("ESA") that provides for the protection of polar bears ("4(d) Rule"). Under the Omnibus Appropriations Act of 2009, Congress granted Secretary Salazar authority until May 10, 2009 to revoke the 4(d) Rule. Secretary Salazar declined to exercise this authority, explaining that "the best course of action for protecting the polar bear under the Endangered Species Act is to wisely implement the current rule, monitor its effectiveness, and evaluate our options for improving the recovery of the species." The Secretary's decision does not mark the end of the debate surrounding the 4(d) Rule, as it is currently the subject of ongoing litigation in the District of Columbia. The Secretary's decision also solidifies the Obama Administration's position that the ESA is not the proper regulatory mechanism for addressing climate change.

Section 4(d) of the ESA allows the U.S. Fish and Wildlife Service ("FWS") and the National Marine Fisheries Service to adopt regulations limiting application of the prohibition on the take of species listed as threatened under the ESA. When the FWS listed the polar bear as a threatened species in May 2008, it issued an interim special rule for the polar bear under Section 4(d). The interim rule was issued in final, in nearly identical form, in December 2008. The final 4(d) Rule implements limits on the application of the take prohibition in three key ways:

The 4(d) Rule is at the center of numerous lawsuits, all of which have been consolidated in a multidistrict action in the federal district court for the District of Columbia. This litigation has essentially been on hold pending the Secretary's decision on the 4(d) Rule. Now that the Secretary has decided to retain the 4(d) Rule, we anticipate that the litigation will proceed according to the current case management schedule, but we do not expect a merits decision on any aspect of 4(d) Rule until the first quarter of 2010, at the earliest.

In the meantime, activities such as oil and gas exploration and development on and near the North Slope of Alaska in polar bear habitat that receive authorization under the MMPA will not be required to obtain take authorization under the ESA. Additionally, GHG-emitting activities outside of the polar bear's range will not be required to consult over the potential effects of those activities on the polar bear under Section 7 of the ESA. In retaining the 4(d) Rule, Secretary Salazar asserted that "the Endangered Species Act is not the proper mechanism for controlling our nation's carbon emissions" and called for Congress to enact comprehensive climate change legislation. With this decision, the Obama Administration has aligned itself with those who have maintained that the ESA is not the proper tool for climate change regulation.

Finally, the Administration's endorsement of the 4(d) Rule has significant implications for a series of additional proposed ESA listings. The Pacific walrus, several Arctic seal species, and the American pika have all been proposed for listing under the ESA based upon climate change. The polar bear 4(d) Rule, now sanctioned by two separate Administrations, provides a practical model for addressing the protection of additional species listed as threatened due to climate change.

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