US judge orders Obama administration to clarify polar bears’ Bush-era ‘endangered’ status

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By Matthew Daly

WASHINGTON — A federal judge ordered the Obama administration on Wednesday to review whether polar bears, at risk because of global warming, are endangered under U.S. law.

U.S. District Judge Emmet Sullivan wants the Interior Department to clarify a decision by the administration of former President George W. Bush that polar bears were merely threatened rather than in imminent danger of extinction.

Sullivan’s request, made at a hearing Wednesday in federal court, keeps in place the 2008 declaration by the Bush administration.

Former Interior Secretary Dirk Kempthorne said in May 2008 that the bears were on the way to extinction because of the rapid disappearance of the Arctic Sea ice upon which they depend. But he stopped short of declaring them endangered, which had it been declared would have increased protections for the bear and make oil and gas exploration more difficult.

Scientists predict sea ice will continue to melt because of global warming.

Along with the listing, Kempthorne created a “special rule” stating that the Endangered Species Act would not be used to set climate policy or limit greenhouse gas emissions, which contribute to global warming and melting ice in the Arctic Ocean.

The Obama administration upheld the Bush-era policy, declaring that the endangered species law cannot be used to regulate greenhouse gases emitted by sources outside of the polar bears’ habitat. If the bears are found to be endangered, however, that could open the door to using the Endangered Species Act to regulate greenhouse gases.

Sullivan said he would issue a written order shortly, but said Wednesday that the government is likely to have about 30 days to explain how it arrived at its decision.

A lawyer for an environmental group called Sullivan’s action “good news for the bear,” adding that the popular animal’s fate was now in the hands of Interior Secretary Ken Salazar.

“The court is not accepting the Fish and Wildlife Service argument that extinction must be imminent before the bear is listed as endangered,” said Kassie Siegel, an attorney for the Center for Biological Diversity, an Arizona-based group that challenged the polar bear listing.

Reed Hopper, an attorney for the California-based Pacific Legal Foundation, which opposes protections for the bears, called the ruling disappointing.

“We would have liked to have the case decided earlier,” Hopper said, noting that legal challenges have lingered in the courts for two years and probably will be delayed at least several more months. Hopper’s group has filed a separate challenge to the polar bear listing, calling the bear a “thriving species” that now numbers about 25,000 from Alaska to Greenland, the highest total in history.

The bear’s threatened status is due mainly to projections about declining Arctic sea ice, rather than a current decline in bear populations, Hopper said.

A spokeswoman for Salazar would not comment Wednesday. A Fish and Wildlife Service official referred calls to the Justice Department, which also refused to comment.

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