Abstract:
On December 27, 2006 the Fish and Wildlife Service (FWS) announced their support for
listing the polar bear (Ursus maritimus) as a threatened species under the Endangered Species
Act (ESA). The polar bear met two of the five listing criteria: (1) decline of the population
throughout all or part of its range; and (2) lack of adequate regulatory mechanisms. The notice
identified global climate change as the primary cause for population decline. FWS concluded
that current laws are adequate to protect the polar bear from short-term direct impacts, but the
listing under the ESA is needed to address impacts from climate change; a long-term, indirect
threat. The polar bear is the first proposed listing with such diffuse and poorly defined harms.
Given the nature of this threat, can the ESA protect the polar bear from global climate change?
To answer this question I examined case studies of other species listed, past implementation of
the ESA, and the establishment of proximate causation. I also reviewed how Section seven of the
ESA might be implemented to address global climate change. The ESA is successful when
‘takers’ can be readily identified, and when the harms are easily managed. ‘Takes’ due to global
warming are difficult to identify due to the number of emitters and differentiating between
natural and anthropogenic sources. Additionally, it will be difficult to establish the proximate
causation needed to assess harms. I conclude that it is unlikely that the listing alone will be able
to save the polar bear.
