Recently, a district judge ordered the Department of the Interior to reconsider its listing of polar bears as "threatened" rather than "endangered" under the Endangered Species Act. In re Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation, No. 1:08-mc-764-EGS (D.D.C. Nov. 4, 2010). The polar bear faces a threat because of the disappearance of sea ice, which the government attributes to climate change. Under the listing decision, if the polar bear is "threatened," one cannot sue emitters of greenhouse gases for violations of the Endangered Species Act, 16 U.S.C. § 1531ff. See 73 Fed. Reg. 28,212 (May 15, 2008). That would not be true if the polar bear were classified as "endangered."
The specific question addressed by Judge Sullivan was whether the government properly relied on the "plain meaning" of the term to decide that the polar bear was not "endangered." The statute contains ambiguities that the government has to address. The court remanded the rule for the limited purpose of providing that additional explanation, and gave the government a deadline of December 23. He will then consider the substance of the challenges to the rationale for the "threatened" listing.
On November 3, Karl Rove is reported to have announced to a large meeting of the natural gas industry that "climate is gone." Comprehensive federal climate change legislation may be "gone," but the risk is not. As we have previously commented, greenhouse gas emissions now face regulation under the Clean Air Act, and that is an awkward, expensive, and uncertain tool for the purpose. As In re Polar Bear suggests, the litigation risk to greenhouse gas emitters also persists, and on relatively indirect theories