Legal Impacts of Endangered Polar Bears

In case you have not been following the news, on May 14 the Bush administration listed the Polar bear as a "threatened species" "becuase of" global warming. It is unclear what this listing means for the future of polar bears, but I want to explore the legal ramifications of such a listing.

The language that troubles me in the listing, is the "becuase of" part. I note that the admistration went further than listing the polar bear as simply an endangered species. By giving the reason for the decline of the polar bear, the administration has opened up a whole "legal can of worms."

The reasoning is simple. By declaring the source of the threat to the polar bear, the ESA can challenge companies producing greenhouse gases in an effort to thwart the spread of the global warming. Additionally, it would not suprise me if certain environmental groups such as Greenpeace or Friends of the Earth switched tactics and brought lawsuits based on the Endangered Species Act. Prior to declaring the polar bear endangered, such groups had already been bringing litigation against companies for production of greenhouse gases. Declaring the polar bear endangered "becuase of global warming" opens a whole to new tract of litigation that I believe will develop in the near future.

In a prior article currently availible on SSRN and pending publication, I explored the ramifications of global warming lawsuits on corporations and their insurance carriers. I look forward to seeing how this new declaration will impact global warming lawsuits. I suspect there will be an significant increase. However, I wonder if any plaintiff can win on something as nebulous as a global warming lawsuit. Presumably, plaintiffs would have to show that greenhouse gases directly and proximately caused damage to polar bears. Given the science, I doubt sucess is likely, but greenhouse gas emitters should be aware of yet a new wave of lawsuits on the horizon.

I would like to further explore the success of lawsuits asking the courts to slow greenhouse gas emissions in an effort to save an endangered species. However, this is a topic for another article, but I am interested in seeing what readers think.