Polar Bear Melodrama
May 15, 2008; Page A16

Polar bears are not the fragile, vulnerable creatures of liberal iconography. They have thrived in the Arctic for thousands of years, both through periods when their sea-ice habitat was smaller, and larger, than it is now. They will continue to adapt – and the Endangered Species Act can't make the slightest difference.

Such realities haven't prevented green showboaters from claiming victory after the Bush Administration designated the polar bear as a "threatened" species yesterday. And it is a kind of victory, though the ruling itself is mostly symbolic – at least for now. However, this is really the triumph of bad legislation over the democratic process.

As Interior Secretary Dirk Kempthorne noted, the 1973 Endangered Species Act is "perhaps the least flexible law Congress has ever enacted." In 2005, green litigants took advantage of this rigidity, suing the government to force it to label the polar bear at risk for extinction. Since the 1980s, the sea ice that the bears use to hunt and breed has been receding. Although the population has increased from a low of 12,000 in the 1960s to roughly 25,000 today – perhaps a record high – computer projections anticipate that Arctic pack ice will continue to melt over the next half-century. This could, maybe, someday, lead to population declines.

The lawsuits were hardly motivated by concern for polar bear welfare. Instead, environmentalists asserted that the ice is thinning because of human-induced global warming. A formal endangered listing is one more arrow in their legal quiver as they try to run U.S. climate policy through the judiciary.

They'll argue that emissions from power plants, refineries, automobiles – anything that produces carbon – would contribute to warming, thus contributing to habitat destruction, and thus should be restricted by the Endangered Species Act. This logic could be used to rewrite existing environmental policy to accommodate greenhouse gasses, purposes for which they were never intended but with economy-wide repercussions.

Mr. Kempthorne laid into this legal gambit as "wholly inappropriate." But under the Species Act, the loss of polar bear habitat is enough to trigger a listing, with no space – by law – for regulatory discretion. However, Mr. Kempthorne was careful to sever the environmentalists' preposterous chain of assumptions: That ice is melting is not proof that global warming is to blame. In fact, research out of NASA in 2007 suggested that shrinking sea ice was due to changing wind patterns, corroborated by a study published in the scientific journal Nature. Neither institution is known for "denying" climate change.

To that end, Interior is promulgating rules intended to prevent the polar bear finding from being "misused to regulate global climate change," as Mr. Kempthorne put it in an interview yesterday. The ruling will have almost no immediate practical consequences, and it won't stop development in the oil- and gas-rich Chukchi and Beaufort seas. Mr. Kempthorne also noted that one of the "ironies" of the listing is that a current law called the Marine Mammal Protection Act includes more stringent protections for polar bears than any endangered-species remedies.

The greatest danger is that this ruling will be distorted by the courts, where it is inevitably headed. On the other hand, not listing the polar bear would have proceeded to litigation too, with potentially worse consequences. Climate-change lawsuits have already deformed the Clean Air Act, the National Environmental Policy Act and others.

The most pernicious element in the polar bear melodrama is the way the law is being run off the rails, and even a duly elected White House can't seem to throw on the brakes. If Congress wants to enact global-warming legislation, then so be it – but the costs and benefits should be argued in the open. This fly-by-night policy making is not only unscientific. It's undemocratic.

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