Hill Heat is reporting that, fresh off the Department of the Interior's decision to delay its anticipated ruling on naming polar bears as an endangered or "threatened" species, several environmental groups have informed Interior Secretary Dirk Kempthorne of their intent to sue.
The groups' complaint alleges that the agency's decision is improper under both the Administrative Procedure Act, which specifies a decision-making period that has now run out, and the Endangered Species Act. The legal case concerning the latter aspect-- and, for that matter, the decision to petition on behalf of polar bears-- is tied to the impact of global warming on polar bears (specifically, the melting of Arctic sea ice, which the species intrinsically relies on) and its direct relevance to the law's key provisions:
In making all listing determinations, the Secretary must consider five statutory listing criteria: (A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. 16 U.S.C. § 1533(a)(1). If a species meets the definition of threatened or endangered because it is imperiled by any one or more of these five factors, the Service must list the species. 16 U.S.C. § 1533(1).
Environmental groups, scientists and Alaska Native activists are especially incensed that this decision came days after the Minerals and Mining Service decided to auction offshore oil-drilling rights that could negatively effect polar bears' habitat, both directly and through global warming impacts. If this sounds like a ripe topic for some congressional oversight and pressure, then Rep. Ed Markey is your man. His global warming panel has scheduled a hearing on this matter for next Thursday, January 17th.
2007 saw the judiciary increasingly open to the idea that existing legal mandates require agencies to account for global warming impacts, with the 9th Circuit's November decision striking down CAFE standards for light trucks serving as a coda with long-term effects that Warming Law's Tim Dowling previously forecasted. Against that kind of legal and congressional backdrop, the Interior Department shouldn't be overly eager to see this one play out in court.