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There is one thing for certain. Interior Secretary Dirk Kempthorne’s announcement yesterday that the polar bear will be listed as “threatened” has stirred the proverbial pot. It should have come as no surprise that regardless of what decision was made, it was going to be the wrong one to someone.

I want to take this opportunity to focus on a few comments made by Sec. Kempthorne, President Bush and others about listing the bear, the Endangered Species Act and the role the courts play in all this.

Here’s a comment made by Sec. Kempthorne in his address yesterday concerning the ESA and his past and present dealings with it.

I sought to reform the Endangered Species Act with Senators Harry Reid and Max Baucus and the late John Chaffee when I served in the United States Senate. I had lived with the consequences of ESA decisions as Governor of Idaho. As Secretary I have now experienced the reality that the current ESA is among the most inflexible laws Congress has passed. It prevents me, as Secretary, from taking into account economic conditions and adverse consequences in making listing decisions.

There is something wrong when an Act such as this that has obviously reached the point where it is being abused, is nearly thirty years old making it “inflexible” and clearly is not necessarily in the best interest of the people or the animals we are trying to protect. This statement should not be taken by some to mean nobody cares about the welfare of animals but things have changed considerably in 30 years.

President Bush said:

“There is a right way and wrong way to approach reducing greenhouse gas emissions. The American people deserve an honest assessment of the costs, benefits and feasibility of any proposed solution. Discussions with such far-reaching impact should not be left to unelected regulators and judges but should be debated openly and made by the elected representatives of the people they affect.”

He acknowledges that the courts are being used by environmentalists to accomplish the goals of its agendas. This is another indication that something is wrong with the ESA. A classic example of manipulation and using of the courts by environmentalists is realized now that 12 groups are suing the government to overturn the decision to take the gray wolf off the ESA list of endangered animals. Their work became much easier with their ability to seek out a judge they know will side with them.

Today’s Wall Street Journal editorial agrees that the courts will make a mess of things.

The greatest danger is that this ruling will be distorted by the courts, where it is inevitably headed.

The National Center for Public Policy Research released a statement yesterday. In that statement the Center also says the courts will be busy.

Environmental organizations will continue to try to use the Endangered Species Act to impose energy-use restrictions on the American public, but no climate policy should be adopted without the consent of the public as expressed through the votes of their elected representatives in Congress.

Sec. Kempthorne evidently believes he can utilize a loophole and institute a new ruling that will prohibit the environmentalists from using this listing to write global warming and environmental policy.

First, to provide clarity and certainty to those regulated under the Endangered Species Act, the Fish and Wildlife Service will propose what is known as a 4(d) rule that states that if an activity is permissible under the stricter standards imposed by the Marine Mammal Protection Act, it is also permissible under the Endangered Species Act with respect to the polar bear. This rule, effective immediately, will ensure the protection of the bear while allowing us to continue to develop our natural resources in the arctic region in an environmentally sound way.

The second thing he plans to do is make it clear that climate change can’t be blamed on any one specific event, entity, etc.

Second, Director Hall will issue guidance to Fish and Wildlife Service staff that the best scientific data available today cannot make a causal connection between harm to listed species or their habitats and greenhouse gas emissions from a specific facility, or resource development project, or government action.

I can’t envision that holding up in the courts but it’s a guarantee we’ll find out sooner or later.

This brings me back to what I referred to in the beginning of this piece. The fourth thing Kempthorne proposes is a clarification of the rules.

Fourth, the ESA regulatory language needs to be clarified. We will propose common sense modifications to the existing regulation to provide greater certainty that this listing will not set backdoor climate policy outside our normal system of political accountability.

Sec. Kempthorne said that the ESA is perhaps the most inflexible piece of legislation ever enacted by the American people. Many of us have screamed for years that changes need to be made along with clarifications. Can this be accomplished in time before the onslaught of lawsuits begin to change this ruling?

There are still many people who are naive enough to believe that this ruling is what the environmentalists wanted and will back off. Not true.

Frances Beinecke, president of the Natural Resources Defense Council, almost immediately after the ruling on the polar bear was announced, sent out emails to members alerting them that the fight continues.

The bad news? The Bush Administration’s plan for “protection” is so full of loopholes for oil companies and other polluters that it could be the equivalent of sending a leaky lifeboat to rescue drowning polar bears — unless we move quickly to get it fixed.

Simply put, you and I have finally gotten the Bush Administration to acknowledge the gravity of the polar bear’s plight — and that’s crucial — but it’s NOT enough to ensure the polar bear’s survival.

So our fight must — and will — go on.

Make no mistake: the Administration’s attempt to water down protection for the polar bear is illegal — and it won’t hold up in court.

That’s why NRDC is already preparing to fight the next round of this legal battle and secure the kind of full-fledged protection that polar bears so desperately need and deserve. I’ll be in touch very soon with more details.

We don’t intend to back down or declare final victory until the polar bear is no longer facing the unthinkable threat of extinction.

Whether or not enough attention can be drawn away from the climate change debate to address serious flaws of the Endangered Species Act remains to be seen. Clearly it is time for some changes and clarifications that are in the best interest of saving species, habitat and protecting our economic investments and overall health and well being.

*Update* Thursday, May 15, 2008 - 12:54 p.m.

Hugh Hewitt says, “This was false hope dressed up as “guidance.”, when referring to Interior Sec. Kempthorne’s assurances that this ruling wouldn’t be allowed to manipulate green house gas emissions.

Tom Remington

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