Blogging the Scott Expedition

Antarctica (right) is one of the most fascinating places on earth--both in terms of its legal regime and in terms of the place itself. Although it has recently become something of a prestige tourist destination, the harsh climate had until recently kept the human footprint relatively light. Yet, the Antarctic is one of the places where climate change is becoming extremely visible. And, illegal overfishing has decimated the Patagonian Toothfish, popularized as Chilean Sea Bass (left), which is on Greenpeace's Red List.

This year is the 100th anniversary of the doomed Scott expedition. For those of you who may not remember, Robert Falcon Scott led a British expedition (right) to the South Pole. His team reached the pole about one month behind the team of Norwegian explorer Roald Amundsen. None of Scott's team made it back to their base on the Coast (while all of Amundsen's team survived.)
To commemorate the 100th anniversary, my dear friend and former colleague Russ Miller (Washington & Lee School of Law) has created a fascinating blog. Each day, he is blogging based on Scott's journal entry for that day. Check it out!

On November 3

On this day in ...
... 1985 (25 years ago today), at a High Court in Auckland, New Zealand, 2 agents of the French secret service pleaded guilty to charges of arson and manslaughter arising out of the bombing of the Rainbow Warrior the previous July. The vessel, owned by the environmental nongovernmental organization Greenpeace, sank (photo credit), and one of its photographers drowned. The bombing had taken place, according to the BBC, "just before the Greenpeace team were to set sail to Muroroa Atoll -- a French territory in the Pacific Ocean -- to protest against French nuclear testing there." Dominique Prieur (above right) and her fellow French agent would be sentenced to 10 years, yet released in 1988. Later she became a human resources staffer for firefighters in Paris.

(Prior November 3 posts are here, here, and here.)

Polar bears in a "regulatory train wreck"?

Polar bears face an increasingly uncertain future.

The Problem
Global warming is changing the arctic — reducing the coverage and availability of the ice on which polar bears depend. Richard Steiner, a marine biology professor at the University of Alaska, puts it a little more bluntly:

For anyone who has wondered how global warming and reduced sea ice will affect polar bears, the answer is simple — they die.

(photo credit) The polar regions bear the brunt of climate change, as we've posted. For example, last year's summer sea-ice shrank to record low levels, about 4.3 million square kilometers in September — nearly 40% below the levels that would be expected based on long-term average levels! That is bad news for polar bears, which depend on sea ice to hunt seals.

The International Union for the Conservation of Nature considers polar bears to be a vulnerable species.

The Lawsuit
The threat that global warming, and the resulting loss of sea ice, poses to the continued existence of the polar bear prompted a lawsuit from Greenpeace, in conjunction with the Center for Biological Diversity (logo at left), and the Natural Resources Defense Council, alleging that the United States Fish and Wildlife Service (FWS) was violating the Endangered Species Act (ESA) by failing to protect the polar bear and its habitat. The Center had first petitioned the Department of Interior in 2005, requesting that the polar bear be listed as "threatened." Under ESA § 1532(5)(C)(20), a species is "threatened" whenever it is "likely to become an endangered species within the foreseeable future through all or a significant portion of its range." Despite a statutory deadline requiring action within 90 days, years passed with no decision about the polar bear.

Footdragging at the Agency
In 2006, in response to a lawsuit challenging FWS’s inaction, the Department made a preliminary finding that catastrophic climate change is destroying polar bear habitat. Thus, on January 9, 2007, FWS published a proposed rule in the Federal Register listing the polar bear as threatened. The ESA requires that listing decisions be made within one year of publication of the proposed rule. Nonetheless, Interior failed to meet the January 9, 2008, statutory deadline for making a final decision. Why? Maybe because another agency within the Department of Interior, the Minerals Management Service, (MMS) is busy issuing oil and gas leases for vast portions of the polar bears' remaining habitat. Indeed, on January 2, 2008, just days before FWS was supposed to list the polar bear, MMS published the Final Notice of Intent for the Chukchi Lease Sale 193, which will open to oil and gas activities 29.7 million acres of the pristine Chukchi Sea, situated in the Arctic Oean between Russia and Alaska.

The Chukchi Sea is home to 10% of the world’s polar bears. (map credit) Rather than protecting the polar bear, FWS has actually been working to eliminate existing protections of polar bears. Indeed, in June of 2007, FWS proposed exempting the oil industry from the Marine Mammal Protection Act protections of polar bears in the Chukchi Sea. Listing the species under the ESA would make these oil and gas leases much more difficult to issue.

Evidence continues to mount that loss of habitat is threatening the continued existence of polar bears. Indeed, a recent MMS study documents that polar bears are drowning as a result of record low sea ice levels off the coast of Alaska.

Judge Wilken acts

Condemning the delays as unreasonable, Judge Claudia Wilken of the U.S. District Court for the Northern District of California, San Francisco, found for the environmental groups on all issues. She ordered the administration to publish its final decision on polar bear status in the Federal Register by May 15. Reflecting the urgency surrounding the question, Judge Wilken also ordered that the decision take effect immediately, invoking an exception to the ordinary 30-day waiting period before an administrative rule takes effect.

Last month, White House Press Secretary Dana Perino (left) claimed that the lawsuit was "inappropriately" trying to use existing environmental laws, like the Endangered Species Act and the Clean Air Act, to address climate change. The result, Perino said, would be a "regulatory train wreck."

While it is certainly true that the polar bear listing will be the first time global warming will be officially labeled a species' main threat, this statement is outrageous. The Executive Branch has a constitutional duty to “take care that the law be faithfully executed.” It is the administration’s do-nothing policy is the regulatory train wreck. The failure to list the polar bear is not only “inappropriate,” it is inexcusable.
There is no dispute that global warming is threatening polar bear habitat. Kudos to Judge Wilken for forcing much needed regulatory action!

Bali dancing

A "U.S. U-turn" resulted in "a deal to launch two years of talks on a broad new climate treaty involving all countries." The change took place on Saturday, a full day after the 2-week U.N. Climate Change Conference in Bali, Indonesia, was supposed to have ended.

Here's Reuters' highlights of the last "dramatic 90 minutes" on the road to what's being called the "Bali Roadmap":

1:00 p.m. ... Developing nations led by India and China are demanding that rich countries do more to lead the way in fighting climate change. The demands arose overnight, partly after the European Union bowed to U.S. pressure and toned down calls for the final text to lay out clear 2020 guidelines for rich nations to axe greenhouse gas emissions.
1:20 p.m. - U.N. Secretary-General Ban Ki-moon, making an unscheduled return after leaving Bali on Friday for East Timor, enters the conference hall with Indonesian President Indonesian President Susilo Bambang Yudhoyono.
'I am disappointed at the lack of progress,' Ban said. 'Everybody should be able to make compromises.'
'The worst thing we can do is for this project to crumble because we can't find the right wording,' Yudhoyono said. 'The world is watching anxiously and I beg you not to let them down.'

As "[d]elegates strongly applauded" the speeches, the EU backed down, prompting more applause. Then:

1:55 p.m. - Paula Dobriansky [right], under secretary of state for democracy and global affairs leading the U.S. delegation, reaffirms U.S. opposition, bringing boos.

No country spoke in support of the United States; to the contrary:

1:56 p.m. - ... Papua New Guinea delegate Kevin Conrad wins wild applause by addressing Dobriansky and saying:
'We ask for your leadership, we seek your leadership ... if you can't give us what we want, please get out of the way.'

Then, the "U.S. U-turn":

2:19 p.m. - Dobriansky backs down, saying 'We will go forward and join consensus,' triggering applause.

Consensus reached; roadmap in place.

Reason for the switch? Reuters reports:

Dobriansky said she changed her mind because the developing country speakers convinced her that they were serious about acting to fight climate change. She said she did not consult Washington before changing her mind.

Final comment from Bali:

Bill Hare of environmental group Greenpeace said he believed it was the first time since 1996 that Washington had won applause at a U.N. climate meeting.

Not so fast: For today's New York Times editorial popping the Bali bubble of good feelings, see here.