Number: RS22906
Title: Use of the Polar Bear Listing to Force Reduction of Greenhouse Gas Emissions: The Legal Arguments
Authors: Robert Meltz, American Law Division 
Abstract: On May 15, 2008, the Fish and Wildlife Service listed the polar bear as a threatened species under the Endangered Species Act (ESA). At the same time, it published a "special rule" limiting the application of ESA prohibitions to activities affecting the bear. The listing and special rule attracted attention due to the likelihood that the listing will be used as a legal basis to attempt to force reductions of greenhouse gas emissions from sources nationwide. At least two arguments might be made. First, the ESA prohibition of "takes" could be argued to be violated by major greenhouse gas sources. The special rule seeks to bar this argument, but has been challenged in court. Second, the ESA might require consultation with the Fish and Wildlife Service before a federal agency can authorize a major source of greenhouse gases, though the Service argues that current science does not support an adequate causal nexus between specific sources of greenhouse gases and specific effects on polar bears.
Pages: 6
Date: August 28, 2008