No surprises in polar bear special rule proposed by FWS

Activities outside the range of the polar bear, including emissions of greenhouse gases, won’t be considered in determining the “take” of the bears under the Endangered Species Act, if a Fish and Wildlife Service proposal published April 19 becomes final.

“None of the prohibitions in § 17.31 of this part apply to any taking of polar bears that is incidental to, but not the purpose of, carrying out an otherwise lawful activity within the United States, except for any incidental taking caused by activities in areas subject to the jurisdiction or sovereign rights of the United States within the current range of the polar bear,” the proposed regulatory language says

Here’s the explanation of that paragraph (Paragraph 4) in the proposal, which summarizes the service’s thinking:

[W]e find that for activities outside the current range of the polar bear (including vast areas within the State of Alaska that do not coincide with the polar bear’s range), overlay of the incidental take prohibitions under 50 CFR 17.31 is not necessary and advisable for polar bear management and conservation. The Service finds the provisions of paragraph (4) to be consistent with the conservation of the polar bear because: (1) The potential for citizen suits alleging take resulting from activities outside of the range of the polar bear is significant; (2) the likelihood of such suits prevailing in establishing take of polar bears is remote, and (3) defending against such suits will divert available staff and funding away from productive polar bear conservation efforts. Even though incidental take of polar bears from activities outside the current range of the species would not be prohibited under this proposed special rule, the consultation requirements under section 7 of the ESA would remain fully in effect. Any biological opinion associated with a consultation will identify any incidental take that is reasonably certain to occur. Any incidental take, identified through a biological opinion or otherwise, remains a violation of the MMPA unless appropriately authorized. In addition, the citizen suit provision under section 11 of the ESA would be unaffected by Alternative 2 for challenges to Federal agencies that are alleged to be in violation of the consultation requirement under section 7 of the ESA. Further, the Service will pursue any violation under the MMPA for incidental take that has not been authorized, and all MMPA penalties would apply. As such, we have determined that not having the additional overlay of incidental take prohibitions under 50 CFR 17.31 resulting from activities outside the current range of the polar bear (including some areas within the State of Alaska) would be consistent with the conservation of the species. The Secretary has the discretion to prohibit by regulation with respect to polar bears any act prohibited in section 9(a)(1) of the ESA.

Environmental groups expressed their displeasure with the proposal.

“The proposed rule severely undermines protection for polar bears by exempting from portions of the Endangered Species Act all activities that occur outside of the bears’ range. But the species is endangered precisely because of activities occurring outside the Arctic — namely the emission of greenhouse gases and resulting warming that is leading to the rapid disappearance of summer sea ice,” the Center for Biological Diversity said in a news release (linked above).