Friday, March 7, 2008

People have long held a near mystical kinship with the polar bear. In recent years the emotional human attraction to this ferocious carnivore species has reached unparalleled proportions.

Coca-Cola depicted a polar bear family to create one of the most effective and memorable product commercials in advertising history.

Knut, the celebrity baby polar bear born in the Berlin Zoo last year, has sparked a media phenomenon dubbed “Knutmania,” including a YouTube video viewed by millions all over the world, as well as toys, DVDs and books.

Aware of the public’s affinity toward the polar bear, environmentalist litigators have adopted the bear as their vehicle — their poster species — for achieving drastic regulatory prohibitions of the everyday human activities that, in their view, are causing irreversible environmental degradation.

Pursuant to that agenda, in 2005 the Center for Biological Diversity, the Natural Resources Defense Council, and Greenpeace petitioned the U.S. Fish and Wildlife Service (FWS) to add the polar bear to the Endangered Species Act list of threatened species. Their petition claims global warming is shrinking the bears’ ice floe habitat, and without the ESA’s protection, the bear will decline toward extinction within the next 45 years. On this basis, in 2007 FWS proposed listing the polar bear as a threatened species.

What makes the polar bear’s expected listing exceptionally news worthy is that it would be the first species given ESA protection because of global warming. Although global warming is still debatable as to cause and degree, tying it by regulatory fiat to the ESA creates a new paradigm. With the listing, unprecedented forces will be unleashed that economically could bring the country to its knees.

Under the ESA, listing determinations are to be based on “the best scientific” data available.” FWS interprets this to mean any data that will support the listing. Under this approach, FWS can disregard the fact that there are now 20,000 to 25,000 polar bears, up from a low of 5,000-10,000 in the 1950s and ‘60s, and higher than at any time in the 20th century.

The FWS can also disregard the basis of current predictions of future polar bear decline is highly speculative data drawn from computer models, the validity of which are challenged by many respected forecasting experts. These include Susan Crockford, who recently cited the lack of any evidence suggesting the polar bear or its food supply is in danger of disappearing.

Even FWS’ own findings do not indicate polar bears are actually declining in number. Yet, in practice, even alleged evidence can justify a listing.

Unfamiliar with the ESA’s “species-first/people-last” bias, most Americans will be rudely surprised by the severe consequences of the polar bear’s listing. Environmentalist litigators have longed for a way to stop oil drilling in Alaska (with crude oil reserves estimated at 15 billion barrels), and other fossil-fuel extractions.

When the listing occurs, these eco-litigators will immediately sue the Environmental Protection Agency, seeking a federal court order to compel EPA to bar any industry, company or individual emitting CO2 — anywhere in the country — from further emissions that presumptively harm the polar bear.

The number and types of essential products, services and activities that could be shut down as a result of the listing is breath-taking, but clearly the oil and gas industry would be among the first. Elimination of oil and gas from the vast supplies in Alaska will drastically drive up gas prices for all consumers, and make us even more dependent on securing those critical commodities from unstable and unfriendly nations, which in turn threatens our national economy and security. Next would be automobiles, power plants, agriculture and virtually every CO2-emitting enterprise.

While the public is emotionally attached to the polar bear, the economic and social consequences of its unsupported ESA listing due to global warming could be devastating to the entire country. This may explain why the interior secretary keeps putting off the listing decision. If this continues, we can expect the eco-litigators to file suit in federal court to compel the listing. This has occurred with numerous species listings over the ESA’s 35-year history.

The polar bear is not the problem, but it provides the clearest evidence why the Endangered Species Act needs a major overhaul.

M. David Stirling is vice president of Pacific Legal Foundation, a legal organization that defends private property rights and a balanced environmentalism. He is former chief deputy attorney general of California. His book, “Green Gone Wild Elevating Nature Above Human Rights,” will be published in April.

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