STIRLING: A dangerous mix in the forecast

The American pika is a small furry mammal resembling a mouse that lives in the mountains throughout the West, including the Rockies, the Sierra Nevada, and the Cascades. It has been voted one of the three “cutest animals” in North America.

The Sierra’s pika population has now become (as of the last week of February) the first mammal in the Lower 48 states considered for federal protection under the Endangered Species Act (ESA) due to global warming. Another charismatic species, the polar bear in Alaska, was first to be listed (2008) because of global warming.

The pika and the polar bear listings status resulted from ESA-based lawsuits filed against the federal government by proliferate eco-litigating organizations including the Center for Biological Diversity (CBD), Earthjustice (the legal arm of the Sierra Club), the Natural Resources Defense Council and Greenpeace.

To these well-heeled litigating organizations, the ESA is the most important environmental law in history. That is because, when enacted in 1973 with their active participation and influence, the ESA changed the age-old scientific definition of “species” to an amorphous, politicized definition that makes the listing of species - especially popular, photogenic ones - much less disciplined. Under the more accommodating definition, lawsuits to list eco-litigators’ favored species are nearly always successful. Hand-in-hand with these successes goes “help-us-save-the species” fund-raising appeals.

Another reason these “species champions” embrace the ESA is that their lawsuits conclude with an award of attorney fees and costs against the government. Although there are no official records of the taxpayer dollars paid in attorney fees to environmental litigators, the Sacramento Bee’s Tom Knudson reported in 2001 (the last extensive research) that “*uring the 1990s, the government paid out $31.6 million in attorney fees for 434 environmental cases brought against federal agencies. The average award per case was more than $70,000.” He added: “No environmental group in America files more endangered species cases at a more frenetic pace than the [Center for Biological Diversity].”

In its polar bear listing lawsuit, CBD alleges that global warming causes its ice floe habitat to melt so that, based on computer modeling, the bear will go extinct within 45 years. Yet, solid evidence shows the polar bear is thriving, increasing from 5,000 in the 1950s to as many as 25,000 today - the highest number in 100 years.

CBD alleges that global warming is driving the heat-sensitive pika to higher elevations in the Sierras, where the grasses it consumes don’t exist, thereby threatening its extinction. Yet, opponents pooh-pooh that claim, noting that pikas have obviously adapted to warmer conditions as they are plentiful in the Sierras and other mountain ranges. With the ESA’s biased listing criteria, the pika, too, may get unneeded protection. And CBD and other groups will no doubt be awarded more attorney fees.

For years, CBD and other eco-zealous organizations have been looking for just the right species and conditions to gain consummate regulatory control over our everyday, essential human activities. Unlike listed plant and wildlife species that impact only the property owner on whose land they reside, the listing of the polar bear - and likely the pika - due to global warming is their “perfect storm.” If the listings becomes final, these litigious organizations will file lawsuits to shut down businesses and entire industries - anywhere in the country - that emit CO2, on the grounds that CO2 contributes to global warming, which presumptively harms the polar bear and the pika.

Early targets of this extreme green agenda will include domestic oil and natural gas drilling and extraction, the manufacture and operation of motor vehicles, construction projects, mechanized agricultural operations, and countless other productive human endeavors.

The only silver lining is that its potentially severe impact on millions of Americans may serve as a wake-up call for the need to reform the ESA into a balanced and common sense-based statute that actually preserves species while recognizing human needs.

M. David Stirling is vice-president of Pacific Legal Foundation (www.pacificlegal.org), a public interest legal organization that defends private property rights and advocates a balanced approach to environmental regulation. He is the author of, “Green Gone Wild - Elevating Nature Above Human Rights” (www.greengonewildbook.com).