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Polar Bear Ruling Makes Mockery Of Legal System

Recently, a US Federal Court ruled that placing polar bears on the endangered species list in 2008 was justified because it was based on the science available at the time and thus met the letter of the law. Yet the Polar Bear Specialist Group of the International Union for the Conservation of Nature (IUCN) has issued a report indicating that there was no change in the overall global polar bear population in the most recent four-year period. Nonetheless, a Federal Judge ruled that, even though the EPA’s action was based on bad science, the misclasification was justified. As Dickens’ put it in Oliver Twist: “If the law supposes that, the law is an ass — an idiot.”

In 2008, the George W. Bush administration decided to list the polar bear as threatened under the Endangered Species Act. Since the US Fish and Wildlife Service first listed the bear the issue has been controversial: environmental groups wanted the bear listed as endangered, not threatened, giving it more protections; and industry groups and others didn’t want it listed at all. This is why some are seeing the ruling by U.S. District Judge Emmet Sullivan of the District of Columbia as a backhanded defeat for environmental groups.

Thanks to the efforts of multiple environmental groups, the Polar Bear has come to symbolize the supposed impact of climate change on the natural world. In response, numerous plaintiffs have challenged the Listing Rule under the 1973 Endangered Species Act, claiming that the Service’s decision to list the polar bear as a threatened species was arbitrary and capricious and an abuse of agency discretion. In the Judge’s 116 page opinion the complexity of the issue was described thus:

As the briefing in this case makes clear, the question of whether, when, and how to list the polar bear under the ESA is a uniquely challenging one. The three-year effort by FWS to resolve this question required agency decision-makers and experts not only to evaluate a body of science that is both exceedingly complex and rapidly developing, but also to apply that science in a way that enabled them to make reasonable predictions about potential impacts over the next century to a species that spans international boundaries. In this process, the Service considered over 160,000 pages of documents and approximately 670,000 comment submissions from state and federal agencies, foreign governments, Alaska Native Tribes and tribal organizations, federal commissions, local governments, commercial and trade organizations, conservation organizations, nongovernmental organizations, and private citizens. In addition to relying on its own experts, the agency also consulted a number of impartial experts in a variety of fields, including climate scientists and polar bear biologists.

After stating that “the Court is keenly aware that this is exactly the kind of decision-making process in which its role is strictly circumscribed,” Judge Sullivan went on to declare the ruling an appropriate act exercise of executive branch authority. “Indeed, it is not this Court’s role to determine, based on its independent assessment of the scientific evidence, whether the agency could have reached a different conclusion with regard to the listing of the polar bear,” Sullivan said in justifying his ruling.

In other words, this ruling had nothing to do with science and everything to do with governmental and political power. This is akin to deciding that, because a plaintiff was found guilty on circumstantial evidence at the time, his subsequent incarceration was proper. Fortunately, in other matters the discovery of new, contradictory facts can lead to a new trial and exoneration.

Science is about supposition, best guesses, and constantly changing explanations. The law is supposed to be held to higher standards. In criminal matters guilt must be proven beyond a reasonable doubt. And even in non-criminal matters hearsay evidence is not admissible. The law is supposed to be based on facts, science offers only the explanation du jour.

Still undecided is the issue of global warming and its potential effect on the polar bear’s habitat. Environmentalists argue that greenhouse gases are to blame for the polar bear’s plight and that the ESA should help regulate emissions, an approach the Obama administration opposes. Sullivan has yet to rule on that question, which the more important issue in the case. Meanwhile, the actual scientific evidence for polar bear endangerment gives the lie to the question—polar bears simply are not endangered.

The SSC Polar Bear Specialist Group (PBSG) of the International Union for the Conservation of Nature (IUCN), the organization of scientists that has attempted to monitor the global polar bear population since the 1960s, has issued areport indicating that there was no change in the overall global polar bear population in the most recent four-year period studied. “The total number of polar bears is still thought to be between 20,000 and 25,000,” the group said in a press release on the proceedings of its 15th meeting. This is exactly the same population estimate the group made following its previous meeting.

“Reviewing the latest information available, the PBSG concluded that one of 19 subpopulations is currently increasing, three are stable, and eight are declining,” said the group’s press release on the report. “For the remaining seven subpopulations available data were insufficient to provide an assessment of current trend,” it said.

Moreover, in at least one of the areas marked as declining, the reason for the decline contradicts the assumption that global warming, and hence disappearing pack ice is the cause. The Norwegian Bay subpopulation is threatened by too much ice, not too little: “The preponderance of heavy multi-year ice through most of the central and western areas has resulted in low densities of ringed seals and consequently low densities of polar bears.”

Polar bears are getting along quite well, thank you.

That the polar bear is not threatened is well known to those who have studied the animals over the long term. In The Resilient Earth we quoted Mitchell Taylor, a polar bear biologist with the Canadian government. He confirmed what Inuit hunters have said for a long time: polar bears who live along the southeast coast of Baffin Island, in northern Quebec, and the northern coast of Labrador are healthy, and growing in numbers.

“The Inuit were right. There aren’t just a few more bears. There are a hell of a lot more bears,” Taylor said, in an interview. Writing in the Toronto Star, in 2006, he stated: “Of the thirteen populations of polar bears in Canada, eleven are stable or are increasing in number. They are not going extinct, or even appear to be affected at present.”

Even though the population of white bears seems to remain stable according to their spotty data, the PBSG said it viewed anticipated changes in the Arctic environment caused by “climate change” to be the greatest threat to the future of the polar bear. Despite its concern that climate change could threaten the polar bear, the group also said it supported the right of human beings to “harvest” the bears.

The PBSG noted that the subpopulation of polar bears in Baffin Bay, shared between Greenland and Canada, may simultaneously be suffering from significant habitat change and substantial over harvest, while at the same time interpretations by scientists and local hunters disagree regarding population status. Similarly, the Chukchi Sea polar bear subpopulation which is shared by Russia and the United States is likely declining due to illegal harvest in Russia and one of the highest rates of sea ice loss in the Arctic.

Notice how they manage to tack sea ice loss on to the end of the statement. The truth is, humans kill many more polar bears than climate change and if they are endangered is is because of over “harvesting” by trophy hunters and indigenous peoples—but blaming the natives would be politically incorrect. When one’s moral sensibilities begins to interfere with scientific judgment it is time to switch from science to philosophy, or maybe political activism.

Perhaps in recognition of the shaky scientific ground their polar bear arguments rest on, the IUCN has issued a new report that casts a wider net in terms of threatened species. “This report presents 10 new climate change flagship species, chosen to represent the impact that climate change is likely to have on land and in our oceans and rivers,” theannouncement states. “We hope these species can help to share the Polar Bear’s burden in representing the effects of climate change on our natural world, and the millions of species with whom we share the planet.” The polar bear’s real burden comes from hunters, bureaucrats and bad science.

With a distinct lack of scientific evidence backing the case for global warming endangering polar bears, the judge in this case seems wise to eliminate science altogether and concentrate on the arcane technicalities of the law. But in further remarks, Sullivan nevertheless made it clear in his opinion that he had some sympathy for environmental groups, such as the Center for Biological Diversity, which had argued that the science on global warming could have supported a finding that the bear was endangered.

“Certainly, where global warming has been identified as the primary threat to the polar bear’s sea ice habitat and the agency has acknowledged that the global warming trend is unlikely to reverse itself, a conclusion that the species is … ‘in danger of extinction’ has undeniable appeal,” Sullivan wrote in a footnote. Evidently the Judge only considers science when it supports his own prejudices.

Thanks for the extra protection, IUCN. Art by iANAR on deviantART.

It would appear that Dickens was correct, the law is indeed an ass—a blindly ideological idiot dead set on finding in favor of the judiciary’s own political prejudices. Of course, the American justice system has nothing to do with justice, only the law. What small glimmer of justice exists has been written into the law by that noble institution, the US Congress—meaning that what justice is on offer was created mostly by accident by a collection of self serving lawyers. If the polar bear needs saving it is from those idiots, not climate change.

Be safe, enjoy the interglacial and stay skeptical.

The Resilient Earth, 4 July 2011