Climate Contrast: Of Polar Bears and Power Plants

by Lisa Heinzerling

Yesterday, the Department of the Interior finally coughed up its decision to list the polar bear as a threatened species under the Endangered Species Act.  The decision is notable for its acknowledgement that climate change is melting the bear's habitat and that greenhouse gases are (at least partly) to blame. At the same time, however, the Department also issued a rule -- effective immediately, before anyone even gets to comment on it -- making clear that the listing will not require anybody but trophy hunters to change their behavior to protect the bear.

Sometimes called the "pit bull" of our environmental laws, the Endangered Species Act strictly limits activities that affect listed species.  The Act directs federal agencies to "insure that any action authorized, funded, or carried out" by them "is not likely to jeopardize the continued existence" of any listed species or destroy or adversely modify its critical habitat.  To make this prohibition stick, the Act requires an agency contemplating any action to ask the Secretary of the Interior whether any listed species "may be present in the area of such proposed action."  If the answer is yes, then the agency must determine whether the species is likely to be affected by the agency's action.  If it is, then a process of formal consultation ensues, at the end of which the agency must drop its proposed action if the action will exceed the limits described above.

The Department's regulations define the area affected by an agency's action -- the "action area," in ESA parlance -- to include "all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action."

Suppose the Environmental Protection Agency proposes a rule exempting a huge category of sources of greenhouse gases from regulatory action.  What is the "action area" for this proposal?  The answer, according to the definition cited above, must be the whole world, as that is the area "affected directly or indirectly by the Federal action."  The answer is clearly not just the area immediately surrounding the sources themselves.  If this is right, one can see why the polar bear listing has struck fear in the hearts of greenhouse gas emitters everywhere: it triggers this country's most absolutist environmental law, in the service of protecting species threatened by climate change.

But when it comes to climate change, yesterday's rule turns the pit bull into a poodle.  Rather than recognizing the global breadth of the "action area" for climate-related agency actions, the Department of the Interior asserted that any effects "beyond the footprint of the action" must be "caused by the action under consultation" and "reasonably certain to occur."  This is not what the Department's rules say.  They do not refer to an action's "footprint"; indeed, as noted, the rules explicitly say that the action area is not "merely the immediate area involved in the action."  And the requirements of causation and reasonable certainty apply only to the indirect effects of an agency action on a species.  It would take a subtle argument -- one the Department does not provide -- to explain why greenhouse gases' effects on the polar bear are not "direct" within the meaning of the Department's rules.  Finally, it is not at all clear that major decisions of the federal government -- such as the decision I have hypothesized, exempting large numbers of greenhouse gas emitters from regulation -- will not cause, with reasonable certainty, effects on species threatened by climate change.

The Department of the Interior has, in short, worked very hard to make sure that its listing of the polar bear under the Endangered Species Act does not trigger the usual protections that Act provides.  Contrast this approach with EPA's recent statements about why it cannot regulate any sources of greenhouse gases at this time. 

In refusing to regulate cars, petroleum refineries, or any other source of greenhouse gases, EPA has explained that doing so would automatically subject hundreds if not thousands of sources to regulatory review under the Clean Air Act.  This is so, EPA says, because the Act's Prevention of Significant Deterioration program requires a permit for any facility that emits a pollutant that is "subject to regulation," in an amount above a certain threshold.  In other words, if EPA regulates greenhouse gases from cars, then greenhouse gases become "subject to regulation," and EPA must regulate other sources of greenhouse gases, too, if they emit greenhouse gases in an amount above the statutory threshold.  EPA believes that the statutory threshold, applied to greenhouse gases, would subject everything from hospitals to schools to regulation under the Clean Air Act.

EPA has historically been able to avoid this kind of problem by issuing "general permits" -- permits that impose generic limits, or sometimes no limits at all, on broad categories of sources that the agency deems low-priority in terms of pollution control.  Surely an agency that has lately found it within its interpretive means to turn the word "daily" into "annual" and the word "any" into "none" could find a way out of the PSD conundrum.  The truth is, the agency hasn't tried; the PSD problem simply provides a convenient excuse to continue to do nothing.

At the same moment the Department of the Interior is turning interpretive somersaults to avoid regulating greenhouse gas emitters through the Endangered Species Act, EPA is clinging to an unnecessarily literal interpretation of the Clean Air Act to justify its own failure to regulate.  These two agencies have thus found different paths to the same end: complete inaction on the defining environmental issue of our time.