Endangered Species Law & Policy

On February 20, 2013, the U.S. Fish and Wildlife Service (Service) issued a final special rule (pdf) to manage the polar bear (Ursus maritimus), which is listed as threatened under the Endangered Species Act (ESA). The rule effectively maintains the management and conservation framework that has been in effect for the polar bear since it was first listed under the ESA in 2008.

The rule states that activities outside the polar bear’s habitat are not subject to ESA incidental take prohibitions. According to the Service, the rule avoids redundant regulation under the ESA by adopting the longstanding and more stringent protections of the Marine Mammal Protection Act of 1972 (MMPA). Specifically, the rule regulates activities that could potentially harm the polar bear, including onshore and offshore oil and gas exploration, development, and production activities in Alaska, by relying on the stricter MMPA incidental take prohibitions.

The rule is the result of a lawsuit brought by environmental groups to require the federal government to regulate greenhouse gas emissions that are contributing to climate change, and thus altering polar bear habitat. The final rule reflects the court’s determination that the ESA isn’t appropriate for regulating greenhouse gases.