Once the polar bear is listed under ESA a complex permitting process is set in place for any entity to operate in the area inhabited by the bears; effectively this includes all the Alaskan Arctic including the 10-02 Area of ANWR. It is during this administrative permitting process that radical environmental organizations such as the Centre for Biological Diversity (CBD) are expected to sue the active government body issuing the permit to slow or outright halt the permitting process. An often cited, lack of enough environmental study time for a perceived threatened species is used as means of attack.

The listing of the polar bear under ESA is significant as it will be the first time an animal is listed using global warming as reasoning. Using global warming creates a serious legalistic problem as the science within the discussion on global warming is highly controversial and often uses speculative and relative future projections from climate models to come to its conclusions. The question, is global warming man made, becomes central to subsequent action under this listing. At the moment, the polar bear listing does not tackle this question, but it is expected environmentalist’s litigation against fossil fuel development due to the listing will take just this view. The ESA listing would require the US Fish and Wildlife Service (FWS) to put in place a biological road-to-recovery plan for the bears. However, because the listing will be made by using global warming the FWS will have to solve global warming to protect the bears. This is something the FWS has no authority, nor expertise to do. To cloud the issue further Secretary Kempthorne has stated that neither the FWS, nor the polar bear listing will be allowed to be used to regulate greenhouse gases. That is the job of the EPA. If so, what will be done (by the FWS/DOI) to protect the bears is a much anticipated question.

It is expected soon that the 10-02 Area of ANWR be put on the block with a Congressional “wilderness” bill again this winter. This is the annually attempted and always failed way environmentalists have tried to lock up ANWR. Using the polar bear endangered species listing however, it is suddenly clear ANWR has a new threat. The 10-02 Area hosts on average 2 polar bear winter dens a year and is part of the normal polar bear habitat. The polar bear population that frequents the 10-02 Area is said to be currently in stable condition. Should the special 10-02 Area of ANWR be opened for oil and gas exploration some time in the future, it is certain the first line of attack of radical green groups will be to use the polar bear ESA listing to try and block development. It is interesting to note however, that the FWS study and announcement citing intention to list the polar bear as endangered also states that their studies have shown neither on or offshore oil and gas exploration has shown any noticeable affect on the polar bear population.

Recent legal battles conducted by the CBD show the future after a ESA polar bear listing clearly. The CBD is an environmental group dedicated to legal warfare against resource development of any kind, anywhere. Its website lists not programs dedicated to saving and studying wildlife, but rather lists of legal suits pending or past it has taken against everything from resource development, to farming, to recreational land or sea use. An example of this situation was seen recently in the Alaskan Arctic just near the 10-02 Area of ANWR with Shell oil. In September this year Shell was prevented from carrying out properly permitted and government regulated off shore oil and gas exploration activities in the Beaufort Sea north of ANWR. The CBD sued the Minerals Management Service (MMS) which issued the operational permits to Shell on grounds that the MMS failed to conduct proper assessment of environmental impacts towards the ESA listed bowhead whale which passes through the area. The ninth circuit court of Appeals ordered a halt to permitting proceedings until it could resolve challenges to the agencies environmental review. The future is clear: the CBD will, similar to its success with the bowhead lawsuit, use the ESA polar bear listing to tackle any proposed oil and gas development onshore.

The ESA listing process for the polar bear has been taking place over the past 2 years. The original pressure to list the species was initiated by a February 2005 proposal to list followed by a December 2005 lawsuit by CBD against the FWS for listing. This was followed by further lawsuits against FWS in 2006 to further coerce the FWS to list followed finally by a warrant finding for listing on February 9th 2006. Secretary of Interior Dirk Kempthorne promptly requested further studies be conducted by the US Geological Survey. Throughout the spring and summer of this year the USGS produced nine reports on the polar bears and Arctic sea ice conditions which have proved highly controversial in the scientific and political worlds. The State of Alaska, along with the Alaska Department of Fish and Game have blasted the nine USGS reports as highly erroneous and recommended to Secretary Kempthorne that the issue be dropped. This is unlikely to happen.

Needless to say the polar bear listing process has garnered much press in the US and Canada as its significant use of global warming as a basis has such tremendous broad implications for energy development and land use. Canadian natives populations do not support the listing due to expected greater pressures on hunting the bears in their areas (allowed in Canada) and ill opinions of the science presented in the USGS reports. The Arctic Slope Regional Corporation and the Inuit Circumpolar Conference representing the Arctic Native population also do not support the listing due to perceived inaccurate science in the USGS polar bear reports, threats to cultural ways of life and lack of native consultation in the decision making process which is required under the ESA regulations.

The future is uncertain on the polar bear and on Alaska’s Arctic. It is unlikely that the inevitable “environmentalist” litigation using the ESA polar bear listing will help or even affect in anyway polar bear numbers on Alaska’s North Slope regardless of impact on the industry, or state, or nation. It is certain, however, the job of the FWS to not only guide us toward fostering a more healthy population of bears, if that’s possible, but also to help work toward guiding the oil and gas industry and human populations toward having minimal impact on wildlife. The latter is something that has been successfully practiced in Alaska’s Arctic for 35 years at Prudhoe Bay with the caribou, musk oxen, brown bears, and dozens of species of birds and fish which are monitored by the FWS within the oil fields every week. America’s largest oil field is has also proved to be America’s best success story of industry’s interaction with nature.

Some of the groups opposed to the listing of the polar bear under the ESA include:

The State of Alaska

Alaska Department of Fish and Game

The Inuit Circumpolar Conference (representing Inuit Natives throughout Alaska, Canada and Greenland)

Arctic Slope Regional Corporation (representing the native people of the Alaskan Arctic)

Department of Environment/Government of Nunavut, Canada (DOE/GON)

Inuvialuit Game Council (IGC), Nunavut, Canada

Polar Bear Administrative Committee (PBAC), Government of Canada

Nunavut Tunngavik Inc. (NTI)

The Competitive Enterprise Institute

The National Center for Policy Analysis

Safari Club International

The Resource Development Council (Alaska based natural resource group)

The Alaska Oil and Gas Association

The American Petroleum Institute

Conservation Force et al. (representing 9 game conservation groups nationwide)

IUCN/North American Sustainable Use Specialist Group (NA-SUSG)