PDF _ RL34573 - Does the Endangered Species Act (ESA) Listing Provide More Protection of the Polar Bear?: A Look at the Special Rules
10-Nov-2010; Kristina Alexander; 16 p.

Update: Previous editions:
October 16, 2009
September 2, 2008

Abstract: The polar bear has been protected under the Marine Mammal Protection Act (MMPA) since 1972, meaning that it is illegal to kill or harass the bear or to transport or trade its parts (with a few exceptions). The Endangered Species Act (ESA) also prohibits killing or harming listed species. Some ask: If it was already illegal to kill or harm the bear when the U.S. Fish and Wildlife Service listed the bear as threatened on May 15, 2008, what protections were provided by the listing?

One example of increased protection is that ESA threatened species are categorized as depleted species under the MMPA, meaning that polar bear trophies may no longer be imported from sport-hunts in Canada under that MMPA exception. Approximately 80 bears a year were permitted for import under this program. Proposed legislation would change that. H.R. 1054 would allow import of polar bears that were legally taken prior to the ESA listing, and H.R. 1055 would revise the MMPA to allow continued import of polar bears, regardless of their status. S. 1395 would also allow continued import of polar bear trophies, but would further modify the act to allow imports even when it would have a significant impact on the Canadian population of bears and regardless of whether it is otherwise consistent with the MMPA. H.R. 5379 would statutorily revoke the listing.

Another protection offered by the ESA listing is habitat protection. The ESA has several provisions that function to protect not just the bear, but its habitat. While the MMPA has habitat protection as a purpose, it does not require any habitat conservation measures or punish habitat destruction. FWS proposed designating critical habitat in May 2010 (revising a proposed designation of October 2009); therefore, that environmental protection would be available when final. FWS estimates that the additional expense of considering adverse impacts on critical habitat could total $53,900 per year. The ESA requires another system that might protect the bear— establishing a recovery plan—but FWS has not completed the process. When a recovery plan is prepared, it would establish recovery goals and trigger congressional monitoring of the polar bear’s progress.

The Special Rule for the polar bear, under Section 4(d) of the ESA, may have minimized some protections the listing otherwise may have provided. The Special Rule describes when the MMPA applies and when the ESA applies, harmonizing some provisions of the two laws, a possible benefit for MMPA permit holders. The polar bear Special Rule also eliminates some protections that the ESA might have provided—such as those relating to incidental takes, subsistence users, or citizen suits—by continuing the MMPA protections. The Special Rule also adds a different standard for certain military actions. Had the polar bear been listed as an endangered species, rather than threatened, there would be no Special Rule. Arguably, polar bears would have been more protected.

A November 2010 court ruling could lead to the end of the Special Rule. The D.C. District Court remanded the listing decision, requiring FWS to justify its rationale by December 23, 2010. If FWS cannot satisfy the court, and the court directs an endangered determination, the Special Rule would cease to apply.

The Omnibus Appropriations Act of 2009 (P.L. 111-8) gave the Secretary of the Department of the Interior discretion to withdraw or reissue the Special Rule within 60 days. No change was made.

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Topics: Climate Change, General Interest, Legislative

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