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S. HRG. 110–1243 

OVERSIGHT HEARING ON THE LISTING DECISION 

FOR THE POLAR BEAR UNDER THE ENDANGERED SPECIES ACT 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

SECOND SESSION 

APRIL 2, 2008 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.access.gpo.gov/congress.senate 

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

BARBARA BOXER, California, Chairman 

MAX BAUCUS, Montana 

JOSEPH I. LIEBERMAN, Connecticut 

THOMAS R. CARPER, Delaware 

HILLARY RODHAM CLINTON, New York 

FRANK R. LAUTENBERG, New Jersey 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

AMY KLOBUCHAR, Minnesota 

SHELDON WHITEHOUSE, Rhode Island 

JAMES M. INHOFE, Oklahoma 

JOHN W. WARNER, Virginia 

GEORGE V. VOINOVICH, Ohio 

JOHNNY ISAKSON, Georgia 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming 

LARRY E. CRAIG, Idaho 

LAMAR ALEXANDER, Tennessee 

CHRISTOPHER S. BOND, Missouri 

BETTINA POIRIER, Majority Staff Director and Chief Counsel 

ANDREW WHEELER, Minority Staff Director 

(III) 

C O N T E N T S 

Page 

APRIL 2, 2008 

OPENING STATEMENTS 

Boxer, Hon. Barbara, U.S. Senator from the State of California ........................ 1 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 7 

Barrasso, Hon. John, U.S. Senator from the State of Wyoming .......................... 71 

WITNESSES 

Inkley, Douglas B., Senior Scientist, National Wildlife Federation .................... 76 

Prepared statement .......................................................................................... 79 

Responses to additional questions from Senator Boxer ................................ 91 

Horn, William P., Birch, Horton, Bittner And Cherot .......................................... 91 

Prepared statement .......................................................................................... 95 

Siegel, Kassie R., Director of The Climate, Air And Energy Program, Center 

For Biological Diversity ....................................................................................... 101 

Prepared statement .......................................................................................... 103 

Responses to additional questions from Senator Boxer ................................ 143 

ADDITIONAL MATERIAL 

Letters: 

Sportsmen’s Letter to Congress ....................................................................... 165 

Scientist’s Letter to Congress .......................................................................... 173 

Sporting and Conservation Groups ................................................................. 207 

Articles: 

The Wildlife Professional: Melting Under Preasure, The Real Scoop on 

Climate Warming and Polar Bears ............................................................. 209 

NOAA: Permanent Removal of California Sea Lions at Bonneville Dam .... 216 

NOAA: NOAA Says Three States Can Remove Certain Sea Lions That 

Threaten Protected Salmon .......................................................................... 218 

NOAA: Seal & Sea Lion Facts of the Columbia River & Adjacent Nearshore Marine Areas ...................................................................................... 220 

(1) 

OVERSIGHT HEARING ON THE LISTING DECISION FOR THE POLAR BEAR UNDER THE 

ENDANGERED SPECIES ACT 

WEDNESDAY, APRIL 2, 2008 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

Washington, DC. 

The full committee met, pursuant to notice, at 10 a.m. in room 

406, Dirksen Senate Office Building, Hon. Barbara Boxer (chairman of the full committee) presiding. 

Present: Senators Boxer, Inhofe, Warner, Craig, Whitehouse and 

Barrasso. 

OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator BOXER. The hearing will come to order. I want to welcome everybody. 

Today, the Committee will conduct an oversight hearing on the 

Bush administration’s delay of the listing of the polar bear. This 

listing is months overdue in violation of the Endangered Species 

Act. 

I also note that the Department only proposed the polar bear for 

listing after it was required to under a settlement agreement which 

triggered the statutory obligation that a final listing decision be 

made on January 9th, 2008. 

Conducting oversight is one of Congress’s most important duties. 

Oversight is especially warranted when a Government agency has 

failed to perform its obligations under the law. The fact that the 

Department of Interior is in litigation over its failure to act is all 

the more reason to conduct an oversight hearing. Agencies in litigation frequently appear before oversight committees as they should, 

or we can’t do our job. 

By failing to finalize its decision with respect to the polar bear 

within the statutory time limits, the Bush administration is violating the law, and that is why we are here today. 

One of the world’s most spectacular animals, the estimated 

20,000 to 25,000 polar bears, are in danger of losing their habitat 

and becoming extinct over the next 50 years. Indeed, scientists 

around the world are greatly concerned about the polar bear’s future due to global warming and melting sea ice which polar bears 

depend upon to hunt and den. 

Two months ago, this Committee heard testimony from legal and 

scientific experts about the consequences of melting polar sea ice 

2 

on the polar bear. These pictures should help demonstrate just 

what is at stake for the bear, particularly the one where you can 

see the bear clinging to the ice. 

Sadly, despite the peer-reviewed scientific evidence, despite the 

opinions of scientists in our own Government, despite the fact that 

we have a strong successful law to protect imperiled species, the 

Endangered Species Act, the Bush administration continues to 

break the law by failing to make a final decision to list the polar 

bear. That is the law’s requirement and they are not doing it. 

During the January hearing, Fish and Wildlife Service Director 

Dale Hall stated plainly that his agency had no legal excuse for the 

delay. Director Hall also restated that his agency needed 30 days 

from January 8th to complete its work. That day passed almost 2 

months ago. The Bush administration does not have the right or 

the discretion to decide not to carry out the law. I guess may be 

I am old fashioned, but I always learned that when laws are passed 

by Congress and signed by the President, they must be obeyed, but 

that is not what is happening here. 

Let’s not forget that the Endangered Species Act was designed to 

save species that are in danger of extinction. These species do not 

have an indefinite period of time to be saved. That is why there 

are strict timeframes for listing decisions. Those timeframes are 

written right into the law, and the Bush administration cannot 

simply waive them. There is no waiver authority in these laws. 

Again, no such legal justification has been given. 

While I am deeply concerned by the Bush administration’s footdragging on the final listing decision for the polar bear, I am further troubled that the Administration charged full speed ahead to 

allow new oil and gas drilling activities in nearly 30 million acres 

of the Chukchi Sea, where about 20 percent of the world’s polar 

bears live. In other words, they went ahead with the drilling even 

though they didn’t finish the science, but they couldn’t wait. That 

is one in five polar bears in the world, and it is half of the U.S. 

polar bear population that lives up there. You can see the ice melt 

in September 2007 compared to where it was in 1980. It has gone 

from eight million to about four million kilometers. 

I will take an additional 2 minutes and I will give an additional 

2 minutes to Senator Inhofe. 

Had the polar bear been listed on the date the Fish and Wildlife 

Service was required to decide, the Minerals Management Service 

would have been required to formally consult with Fish and Wildlife under the Endangered Species Act. The Section 7 consultation 

requirements are the heart of the protections of the ESA. Indeed, 

it is standard among the most successful of any wildlife law in the 

world. 

By requiring the agencies to work with the Fish and Wildlife 

Service to ensure that an agency’s actions do not jeopardize the existence of a species or destroy the habitat, the Act’s consultation requirements provide a critical layer of protection that other environmental reviews simply cannot match. But the Administration went 

ahead and accepted bids, even though oil and gas activities may 

disturb the polar bear making their dens, and even though an oil 

spill could pose big risks to the polar bear population. 

3 

Any claim by the Administration that the polar bear is not 

threatened or endangered by these oil and gas activities has not 

gone through the analysis for threatened or endangered species required by the Endangered Species Act. I am profoundly troubled by 

these events, but I suppose I shouldn’t be surprised. Indeed, the 

Administration did not even begin to act on the polar bear listing 

process until it was sued by conservation groups. 

More important, there is a consistent pattern in the Bush administration of failure to list species under the Endangered Species 

Act. As of today, it has been 693 days since the Department of Interior has listed a single domestic species under the Act. Not a single domestic species has been listed since Mr. Kempthorne became 

Secretary of the Interior. Fewer species have been listed per year 

under the Bush administration than under any other President in 

the history of the Endangered Species Act. Under President Clinton, an average of 65 species were listed per year. Under the current President Bush, only eight have been listed per year. Republican Presidents Reagan and the first George Bush had substantially better records than that, with an average of 32 and 58 listing 

per year respectively. 

Given that according to the Intergovernmental Panel on Climate 

Change as many as one-third of the world’s species are at risk of 

extinction if global temperatures exceed 1.5 degrees to 2.5 degrees 

Celsius above present-day levels, we need to be redoubling our efforts, not curtailing them. We have to redouble our efforts to protect species. I sat here and heard the scientists tell us that 40 percent of the species are at risk in uncontrolled global warming. 

This polar bear listing decision is months overdue. Time is running out for the polar bear, and time has run out for this decision 

to be made. The Bush administration has its legal obligation to finalize its decision on the polar bear, and we all have a moral obligation to see that they do it. We owe it to our grandchildren who 

will inherit this world. 

I might say we got a letter from Secretary Kempthorne. I ask 

unanimous consent to place it into the record. Without objection, 

we will do that. 

[The referenced document follows:] 

Dear Madam Chairman 

As a former United States Senator and a former member of the Committee on 

Environment and Public Works (EPW). I have the utmost respect for the mission 

of the Committee and its oversight responsibilities. Therefore. I appreciated our conversion several days ago on this oversight responsibility and how it relates to the 

issue of the polar bear. 

It was during my tenure on the EPW Committee that the members approved my 

bill, supported on a bipartisan basis. supported by Senators Larry Reid, Max Baucus, Jim Inhofe, John Warner, and others, to improve the Endangered Species Act 

(ESA). I also want to acknowledge the considerable contributions to the ESA and 

Safe Drinking Water Act made by the late John Chafee. who led the Committee during my tenure. It was the Committee that unanimously approved, with your support, my legislation to improve the Safe Drinking Water Act that today is still the 

law of the land. 

Both on the phone and in writing. I have committed to appear before the Environment and Public Works Committee once a mutually agreeable date is found and a 

final determination on the polar bear has been made. I have directed Matt Eames. 

Director of the Office of Congressional and Legislative Affairs, to work with your 

staff to find such a date once a decision is made. 

Since a final determination has not been made. I must respectfully decline at this 

time the opportunity to appear at an April 2, 2008, hearing that was set without 

4 

my prior agreement. I am, in my official capacity, one of the named defendants in 

litigation on the matter that is the subject of the hearing. In fact, one of the other 

witnesses at the hearing is a representative of one of the plaintiffs in that case. 

Again. I will appear before the Committee at a mutually acceptable time once a decision has been made. 

As you know. on January 9, 2007, the U.S. Fish and Wildlife Service (FWS) proposed to list the polar bear as a threatened species throughout its range after a scientific review of the polar bear found that populations may be threatened by decreasing sea ice extent and converge and inadequate regulatory mechanisms to address sea ice recession. In January 2007, I directed the U.S. Geological Survey 

(USGS) to perform new research aimed at providing additional analysis to assist our 

process of moving from a proposed rule to a decision. I also directed the FWS to 

work with the public and pertinent sectors of the scientific community to broaden 

our understanding of the factors affecting the species and to gather additional information to inform the final decision. 

In September 2007. USGS scientists provided the results of their new research 

to the FWS. This research included an evaluation of polar bears occupying similar 

physiographic ecoregions and a determination of how the observed and projected 

changes in sea ice translate into changes in polar bear habitat availability and status. The research updated population information on polar bears of the Southern 

Beaufort Sea of Alaska and provided new information on the status of two other 

polar bear populations (Northern Beaufort Sea and Southern Hudson Bay). The 

USGS studies also provided additional data on arctic climate and sea ice trends and 

modeled probabilities of change to polar bear numbers throughout the species’ range 

over various time periods. 

As a result of the new USGS research findings, the FWS reopened and later extended a second comment period to allow the public time to review and respond to 

the USGS findings. At the time the decision was made to reopen and extend the 

comment period, Director Dale Hall informed me that the FWS would likely need 

extra time to adequately evaluate and incorporate results from the comments received. The FWS received over 670,000 comments on the proposed listing. The review of the science involved in determining whether the polar bear should be listed 

has been extensive and has involved Director Hall and USGS Director Mark Myers. 

It is important to recognize that there are occasionally tensions between the 

ESA’s time deadlines and the ability of the Department to render a thorough and 

defensible decision. As one example, former Secretary of the Interior Bruce Babbitt 

and former FWS Director Jamie Rappaport Clark, were unable to meet the listing 

deadline for the lynx. I believe Secretary Babbitt wanted to make sure his decision 

was well-founded, though the necessary deliberations meant missing deadlines. I believe Secretary Babbitt recognized, as I do, that these decisions must be sound and 

defensible, based on the law and the best available science. I experienced his interest in the ESA when I was developing my Senate ESA reform bill. I worked closely 

with Secretary Babbitt and Director Clark on the drafting of provisions to improve 

ESA implementation. ’ 

Your March 21 letter referenced the Department’s duty to protect the polar bear 

from the threat of extinction. The Department does have the duty to determine 

whether the polar bear should be listed under the ESA and currently protects the 

bear under the stringent provisions of the Marine Mammal Protection Act. You also 

have questioned why I did not delay approval of the Chukchi Sea oil and gas lease 

sale. The threat to the polar bear identified by the Department’s scientists is receding sea ice. The January 2007 proposed listing of the polar bear as threatened included the following with respect to oil and gas activities: 

However, based on mitigation measures in place now and likely to 

be used in the future, historical information on the level of oil 

and gas development activities occurring within polar bear 

habitat within the Arctic, the lack of direct quantifiable impacts 

to polar bear habitat from these activities noted to date, and because of the localized nature of the development activities, or 

possible events such as oil spills, they do not threaten the species throughout all or a significant portion of its range. 

Moreover, should the polar bear ultimately be listed, any oil and gas exploration 

and development activities would be subject to the ESA, the Marine Mammal Protection Act, the National Environmental Policy Act, and other relevant laws. The 

timing of the lease sale does not affect these requirements. 

5 

I have a duty under the ESA to examine the factors for listing a species and making a determination based on science and the requirements of the law. My decision 

will be based solely on these requirements. 

I repeat my commitment to appear before the Committee once a decision is made 

and a mutually agreed upon time is reached. Careful deliberation will not imperil 

the survival of the polar bear; it will better ensure that the decision is legally sound 

and based upon the best available science and the requirements of the law. 

Senator BOXER. Essentially what the Interior Secretary said in 

the letter is he would not come before us, even though I have tried 

to get a day that would work for him, because he is being sued in 

relation to this. He also said that there were other Secretaries of 

Interior that missed the deadline on endangered species. He also 

said that he would come here after the decision is made. He also 

said that he believes there is no adverse impact to the polar bear 

in the Chukchi Sea. 

I wanted in fairness to State what he said. The letter will be 

available for the record. I am extremely disappointed that he is not 

here. 

In closing, I just always like to remind myself of some of the ancient writings about the environment. One of them was written in 

500 AD. This was written of God’s creation: ‘‘See my handiwork, 

how beautiful and choice they are. Be careful not to ruin and destroy my world, for if you do ruin it, there is no one to repair it 

after you.’’ That is from Genesis, a commentary on Genesis around 

500 AD. ‘‘Be careful not to ruin it and destroy my world, for if you 

ruin it, there is no one to repair it after you.’’ 

Once they are gone, they are gone. So missing these deadlines is 

not something that should pass this body. And Mr. Kempthorne’s 

not being here I believe is a slap at this Committee, and it is a slap 

at the American people who care about this. 

Thank you very much. We will add 4 minutes to your time and 

give you 9 minutes. 

[The prepared statement of Senator Boxer follows:] 

STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM

THE STATE OF CALIFORNIA

Today, the Committee will conduct an oversight hearing on the Bush administration’s delay of the listing of the polar bear. This listing is months overdue, in violation of the Endangered Species Act. 

I also note that the Department only proposed the polar bear for listing after it 

was required to act under a settlement agreement which triggered the statutory obligation that a final listing decision be made by January 9, 2008. 

Conducting Oversight is one of Congress most important duties. Oversight is especially warranted when a government agency has failed to perform its obligations 

under the law. 

The fact that the Department of the Interior is in litigation over its failure to act 

is all the more reason to conduct an oversight hearing. Agencies in litigation frequently appear before oversight committees—as they should. 

By failing to finalize its decision with respect to the polar bear within the statutory time limits, the Bush administration is violating the law—that is why we are 

here today. 

One of the world most spectacular animals, the estimated 20,000–25,000 polar 

bears are in danger of losing their habitat and becoming extinct over the next 50 

years. 

Indeed, scientists around the world are greatly concerned about the polar bear’s 

future, due to global warming and melting sea ice, which polar bears depend on to 

hunt and den. 

Two months ago, this Committee heard testimony from legal and scientific experts 

about the consequences of melting polar sea ice on the polar bear—these pictures 

6 

help demonstrate just what is at stake for the bear if we continue to ignore the 

problem. 

And sadly, despite the peer-reviewed scientific evidence; despite the opinions of 

scientists in our own government; despite the fact that we have a strong, successful 

law to protect imperiled species—the Endangered Species Act—the Bush Administration continues to break the law by failing to make a final decision to list the 

polar bear. 

During the January hearing, Fish and Wildlife Service Director Dale Hall stated 

plainly that his agency had no legal excuse for the delay. Director Hall also restated 

that his agency needed about an additional 30 days from January 8 to complete its 

work—that day passed almost 2 months ago. 

The Bush administration does not have the right or the discretion to decide to 

not carry out the law. I guess maybe I’m old-fashioned, but I always learned that 

when laws are passed by Congress, and signed by the President, they must be 

obeyed. But that’s not what’s happening here. 

Let us not forget that the Endangered Species Act was designed to save species 

that are in danger of extinction. These species do not have an indefinite period of 

time to be saved. This is why there are strict timeframes for listing decisions written right into the law and the Bush administration cannot simply waive them. 

Again, no such legal justification has been given. 

While I am deeply concerned by the Bush administration—foot-dragging on the 

final listing decision for the polar bear, I am further troubled that the Administration charged full speed ahead to allow new oil and gas drilling activities in nearly 

30 million acres of the Chukchi Sea, where about 20 percent of the world’s polar 

bears live. That’s one in five polar bears in the world. 

Had the polar bear been listed on the date the Fish and Wildlife Service was required to decide, the Minerals Management Service would have been required to formally consult with the Fish and Wildlife Service under the Endangered Species Act. 

The Section 7 consultation requirements are the heart of the protections of the 

Endangered Species Act. Indeed, its standard is among the most successful of any 

wildlife law in the world. By requiring the agencies to work with the Fish and Wildlife 

Service to insure that an agency’s actions do not jeopardize the existence of a species or adversely change or destroy its habitat, the Act’s consultation requirement 

provides a critical layer of protection that other environmental reviews simply cannot match. 

But the Administration went ahead and accepted bids, even though oil and gas 

activities may disturb polar bears making their dens, and even though an oil spill 

could pose big risks to the polar bear population. Any claim by the Administration 

that the polar bear is not threatened or endangered by these oil and gas activities 

has not gone through the analysis for a threatened or endangered species required 

by the Endangered Species Act. 

I am profoundly troubled by these events. But I suppose I should not be surprised. 

Indeed, the Administration did not even begin to act on the polar bear listing process until after it was sued by conservation groups. More important, there is a consistent pattern in the Bush Administration of failure to list species under the Endangered Species Act. 

As of today, it has been 693 days since the Department of the interior has listed 

a single domestic species under the Act. And not a single domestic species has been 

listed since Mr. Kempthorne became Secretary of the Interior in May 2006. Fewer 

species have been listed per year under the Bush Administration than under any 

other president in the history of the Endangered Species Act. 

Under President Clinton, an average of 65 species were listed per year; under the 

current President Bush only 8 have been listed per year. Republican Presidents 

Reagan and the first George Bush had substantially better records than that, at an 

average of 32 and 58 listings per year, respectively. 

Given that according to the Intergovernmental Panel on Climate Change, as many 

as one-third of the world’s species are at risk of extinction if global temperatures 

exceed 1.5–2.5 degrees Celsius above present day levels, we need to be redoubling 

our efforts to protect species from extinction—not curtailing them. And more species 

will be threatened if temperatures go higher. 

This polar bear listing decision is now months overdue. Time is running out for 

the polar bear and time has run out for this decision to be made. 

The Bush Administration has its legal obligation to finalize its decision on the 

polar bear more important, all of us have a moral obligation. We owe it to our 

grandchildren who will inherit this world. A Rabbi wrote of God’s creation in 500 

AD: 

7 

‘‘See my handiwork, how beautiful and choice they are. . . Be careful not to ruin 

and destroy my world, for if you do ruin it, there is no one to repair it after you.’’ 

OPENING STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. Thank you, Madam Chairman. 

This is our second hearing in 3 months on the polar bear. The 

focus of this hearing is on the Department of Interior’s failure to 

meet its court-ordered and statutory deadlines for making a listing 

decision in a subsequent lawsuit brought by environmental groups. 

The decision is overdue by 90 days, and many of my Democratic 

colleagues are outraged by this delay. I firmly believe that statutory and court-ordered deadlines should be met. However, this is 

not the first time that the Fish and Wildlife Service has missed one 

of these deadlines. For example, in July 1998, the Clinton administration proposed to list the Canadian lynx as threatened under the 

ESA. The final rule was published in March 2000, exceeding the 

statutory 1-year deadline by more than 250 days. It is my understanding that from 1998 to 2000, the prior Administration had a 

10 percent success rate in getting listing decisions made within the 

1-year statutory window. So this is not an unprecedented occurrence nor is it unique to the Bush administration. 

It is very telling that my Democratic colleagues have chosen this 

missed deadline over which to get upset. The fact that we have had 

two hearings on a single listing decision reinforces my belief that 

the listing of the polar bear is not about protecting the bear, but 

about using the ESA to achieve global warming policy that special 

interest groups cannot otherwise achieve through the legislative 

process. 

Worldwide polar bear population numbers are at a near all-time 

high, especially in comparison to 40 and 50 years ago. They are 

about four times the population that they were at that time. A majority of populations are considered stable. Interestingly, I worry 

that we have spent and will continue to spend too much time and 

money examining a healthy species, and manufacturing ways to 

predict its demise, when there are hundreds of species legitimately 

on the list that need these scarce department resources. 

The ESA is simply not equipped to regulate economy-wide greenhouse gases, nor does the Fish and Wildlife Service have the expertise to be a pollution control agency. The regulatory tools of the 

ESA function best when at-risk species are faced with local, tangible threats. Greenhouse gas emissions are not local. Without objection, I would like to enter into the record a law review article 

written by Florida State Law School Professor J.B. Ruhl entitled 

Climate Change and the Endangered Species Act. 

Senator BOXER. Without objection, so ordered. 

[The referenced document follows:] 

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Senator INHOFE. In this article, Professor Ruhl states ‘‘accurate 

prediction of planet change effects on local ecological conditions is 

for now, and perhaps always will be, beyond the capacity of ecological models.’’ In essence, we can’t scientifically establish a direct 

causal link from a CO2 molecule in Oklahoma or in Wyoming or 

in China to a direct effect on a polar bear in Alaska. We can’t say 

which molecule is responsible. So how do you know who is the culprit? And how do we regulate their activity under the ESA? 

I look forward to hearing from Bill Horn, a former Assistant Secretary at Fish and Wildlife and Parks in the Reagan administration, on this point. I would ask him to make some comments in his 

opening statement relative to this, if he would, please. 

Finally, when I was Chairman of this Committee, we heard testimony before the Committee that the Act’s strict timelines make it 

nearly impossible for the scientists to do a thorough job. The Act’s 

terms, such as foreseeable future, on which the polar bear decision 

rests, pose complex problems for decisionmakers. 

The Director of the Service testified in January that he needed 

extra time to review additional science before making a final decision on the polar bear. While every deadline should be met, I believe it is most important, given the implications of the polar bear 

listing, that we get this right the first time. 

I look forward to the hearing, but since we have a little bit of 

extra time, Madam Chairman, and anticipating some criticism of 

Secretary Kempthorne, and of course we were here back when he 

was a member of this Committee. He has not shirked his duty to 

appear. In fact, he has offered to appear before the Committee as 

soon as the decision as made, as you stated. 

The listing decision is in litigation. Kempthorne is a named defendant. One of the plaintiffs, the Center for Biological Diversity, 

is on the second panel. I am sure they will comment about this. 

There is a concern that comments and questions or documents relevant to the lawsuit would be brought up at the hearing. 

Quite frankly, I talked to him yesterday, and I said I think you 

are right in not doing it. I recommended that he not. 

And since we are quoting the Bible, I quickly asked for mine, for 

Romans 1:25, because I couldn’t remember it verbatim, but I have 

it in front of me now: ‘‘They exchanged the truth of God for a lie, 

and worshiped and served created things, rather than the Creator, 

who is forever praised. Amen.’’ 

Senator BOXER. Would you repeat that please? 

Senator INHOFE. Yes. ‘‘They exchanged the truth of God for a lie, 

and worshiped and served the created things, rather than the Creator, who is forever praised.’’ 

[The prepared statement of Senator Inhofe follows:] 

STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM

THE STATE OF OKLAHOMA

Good morning. This is our second hearing in 3 months on the polar bear. The 

focus of this hearing is on the Department of the Interior’s failure to meet its courtordered and statutory deadlines for making a listing decision and the subsequent 

lawsuit brought by environmental groups. The decision is overdue by 90 days and 

many of my Democratic colleagues are outraged by the delay. 

I firmly believe that statutory and court-ordered deadlines should be met. However, this is not the first time that the Fish and Wildlife Service has missed one 

of these deadlines. For example, in July 1998, the Clinton administration proposed 

71 

to list the Canadian Lynx as threatened under ESA. The final rule was published 

in March 2000—exceeding the statutory 1-year deadline by more than 250 days. It 

is my understanding that from 1998–2000, the prior administration had a 10 percent success rate in getting listing decisions made within the 1-year statutory window. So this is not an unprecedented occurrence, nor is it unique to the Bush administration. 

It is very telling that my Democratic colleagues have chosen this missed deadline 

over which to get so upset. And the fact that we have had two hearings on a single 

listing decision reinforces my belief that listing the polar bear is not about protecting the bear, but about using the ESA to achieve global warming policy that special interest groups cannot otherwise achieve through the legislative process. Worldwide polar bear population numbers are at or near all-time highs, especially in comparison to 40–50 years ago. A majority of populations are considered stable, some 

are increasing. I worry that we have spent, and will continue to spend, too much 

time and money examining a healthy species and manufacturing ways to predict its 

demise, when there are hundreds of species legitimately on the list that need these 

scarce department resources. 

The ESA is simply not equipped to regulate economy-wide greenhouse gases, nor 

does the Fish and Wildlife Service have the expertise to be a pollution control agency. The regulatory tools of the ESA function best when at-risk species are faced with 

local, tangible threats. Greenhouse gas emissions are not local. Without objection, 

I would like to enter in the record a law review article written by Florida State Law 

School professor JB Ruhl entitled ‘‘Climate Change and The Endangered Species 

Act.’’ In his article, Professor Ruhl states, ‘‘Accurate prediction of climate change effects on local ecological conditions is, for now (and perhaps always will be) beyond 

the capacity of ecological models.’’ In essence, we can’t scientifically establish a direct causal link from a CO2 molecule in Oklahoma or in Wyoming or in China to 

a direct effect on a polar bear in Alaska. We can’t say which molecule is responsible. 

So how do you know who the culprit is and how do you regulate their activity under 

ESA? I look forward to hearing from Bill Horn, a former Assistant Secretary for 

Fish, Wildlife and Parks in the Reagan administration on this point. 

Finally, when I was Chairman, we heard testimony before the committee that the 

Act’s strict timelines make it nearly impossible for the scientists to do a thorough 

job. And, the Act’s terms, such as ‘‘foreseeable future’’—on which the polar bear decision rests—pose complex problems for decisionmakers. The Director of the Service 

testified in January that he needed extra time to review additional science before 

making the final decision on the polar bear. While every deadline should be met, 

I believe it is most important, given the implications of a polar bear listing, that 

we get this right the first time. I look forward to hearing from our witnesses. 

Senator BOXER. Yes, liars should not be praised. You are right 

about that. 

Senator INHOFE. Yes. 

Senator BOXER. Senator Barrasso. 

OPENING STATEMENT OF HON. JOHN BARRASSO, 

U.S. SENATOR FROM THE STATE OF WYOMING 

Senator BARRASSO. Thank you very much, Madam Chairman. I 

appreciate your holding this hearing. 

We should all care for the polar bears, and hope that our international treaties and our laws aid the polar bear whenever possible. The polar bear is a spectacular creature. It is spectacular because it has been resilient and adaptive. Polar bears have persisted 

and evolved for thousands upon thousands of years during periods 

of extreme changes to their ecosystem. 

Madam Chairman, I do have serious concerns about the possible 

listing of the polar bear as threatened under the Endangered Species Act. Quite simply, the Endangered Species Act cannot reverse 

climate change. Perhaps some stand-alone legislation passed by 

Congress in conjunction with a comprehensive international agreement could, but not the Endangered Species Act. Any attempt to 

make the Endangered Species Act regulate emissions from across 

the Country to protect the polar bears, and any other Arctic species 

72 

for that matter, are misguided. Those attempts, if successful, would 

be disastrous to folks all across the Country. 

My primary concern is this. If the polar bear is listed under the 

rationale that global warming could cause a decline, then thousands of other species will follow. How can we possibly preclude 

any species on the planet from being listed under this rationale? 

The consequences to our society would be dramatic and devastating. Virtually every human activity that involves the release 

of carbon into the atmosphere would have to be regulated by the 

Federal Government: driving to work, harvesting corn for ethanol 

production, building a new road. Whole cities could be sued for not 

restricting the number of cars that can be on the road within the 

city limits. 

In addition, some have speculated that any Federal action, 

whether it is building a new power plant, repairing a road—any 

Federal action—would be subject to this proposed standard by asking the question, does the activity contribute to global warming. 

The Endangered Species Act listing could potentially go beyond 

the scope of Lieberman-Warner into areas that the bill never intended to regulate in the first place. We would have to put caps 

on all ethanol production, homebuilding, recreational boat use, road 

construction, just to name a few. There would be no area of the 

economy left untouched. 

Is this where we want to go with the Endangered Species Act? 

I think the answer is no. And if it not the case, what assurances 

can you give me and my constituents that every activity that they 

engage in at the State level, the local level, or even the private 

level will not get caught up in the new interpretation of the Endangered Species Act? 

Thank you, Madam Chairman. I look forward to the hearing. 

Senator BOXER. Let me just say a couple of things. I am going 

to put in the record, without objection, a report, or just one particular page, page two of the USGS Science Strategy to Support 

U.S. Fish and Wildlife Service Polar Bear Listing Decision. In it, 

it says, ‘‘Our modelings suggest that realization of the sea ice future, which is currently projected, would mean loss equivalent to 

two-thirds of the world’s current polar bear population by mid-century.’’ I think that is important to note, that that is a USGS finding. 

[The referenced document follows:] 

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Senator BOXER. Also, I did mention that in Secretary 

Kempthorne’s letter, he cited the fact that under the Clinton administration there was a delay. Well, I want to say if someone else 

breaks the law, that is not a reason for you to break the law. If 

I know someone who breaks the law, it is not a reason for me to 

break the law. 

I also think that it is in fact a slap at the oversight responsibility 

of the Senate if all of a sudden members of Cabinets, I don’t care 

if they are Democrats or Republicans, refuse to come up until they 

have already made their decision, when we have a chance to really 

go back and forth and discuss it and share information in a public 

setting. I just think this is a horrible precedent. Mr. Johnson did 

it with us on the California waiver. He wouldn’t come back until 

after the decision was made, and now we have it here. 

I hope that this will not become the norm, because believe me, 

Administrations both Republican and Democratic don’t enjoy coming up here. I know it is not always pleasant, but it is part of their 

responsibility. 

I also have to say to Senator Barrasso, I found your comments 

fascinating and confusing because what you are saying is, if the 

polar bear is threatened due to climate change, and all of a sudden 

the Endangered Species Act is going to be triggered when we find 

a species that is threatened by climate change, what a disaster this 

would be. I would like to challenge you by saying, what a disaster 

it would be if we did nothing when God’s creatures are disappearing off the Earth, whatever the reason. We have to get to 

the cause and we have to stop greenhouse gas emissions. 

What if my friend found out that human life itself was threatened by climate change? What if we found out human life was 

threatened, which we are, by the way finding out, because certainly 

we know there will be refugees. Is he going to sit here and say, 

well, this is terrible; we can’t take any steps to protect my constituents’ human life because it would hurt our economy? 

I mean, the whole thing makes no sense when there are no people left, when you can’t grow because you are not doing it in an 

environmentally sensitive way you destroy this very economy, and 

by the way this very planet. It seems to me that is the worst thing 

we can do. 

So I think following your logic, sir, we would do nothing about 

anything because in the short term it might say to one of your constituents, you know, maybe you need to perhaps consider buying a 

more fuel-efficient car, rather than not have a hospitable planet. 

Senator BARRASSO. Well, Madam Chairman, my concern of 

course is that the greatest producer of greenhouse gas in the world 

is not our Country, but China. And with the international concerns 

in our Committee, I have been proposing making the investments 

in the technology to then have them used globally to reduce the 

amount of carbon dioxide and deal with it that way, rather than 

just stifling the United States and its efforts. 

Senator BOXER. Well, I might say, I understand my friend feels 

that way. I could say, speaking for my State, which has been on 

the forefront of the environment, we have led the way in high-tech, 

venture capitalism, incredible change in our thrust after the cold 

war. It is extraordinary. The best per capita use of energy, and we 

75 

have a bipartisan agreement that when you do the right thing for 

the environment, you really help the economy. That is from, you 

know, our Governor down to our Democratic legislature. 

So I don’t think that Senator Warner, Senator Lieberman, Senator Boxer and all the other people who voted for this bill are voting to do something to hurt America. I think we believe that it will 

in fact make America a leader in global warming, and we are going 

to test this out on the floor come June 2d, but we will engage in 

that debate. 

Senator INHOFE. Let me get in on this discussion for one comment, Madam Chairman. 

Senator BOXER. Sure. 

Senator INHOFE. I think what Senator Barrasso is bringing up is 

very legitimate. Whether it is the Lieberman-Warner bill or any of 

the other bills or approaches that merely try to address the problem in this Country, and they have an economic devastating effect 

on this Country that drives—and there is no question about this— 

jobs to areas where they don’t have this problem, such as China. 

And we are experiencing it now. 

I would suggest that, which we won’t; it is not going to pass anyway, so it doesn’t make much difference. But if it were to pass—— 

Senator BOXER. You didn’t think it would pass the Committee either? 

Senator INHOFE. Oh, I did, too. Are you kidding? With your 11 

to 8 majority? I had no doubt. In fact, the Committee took 9 hours 

and it could have been done in 15 minutes and it would have been 

a better use of everyone’s time, I think. 

But the fact is that if you are successful in passing something 

like Lieberman-Warner, and driving those jobs to places where 

they don’t have any emission controls or restrictions, it would have 

the effect of increasing the global CO2 on this planet. I think people have to realize that, and that is one of the many reasons that 

this legislation will not pass. 

Senator BOXER. Well, speaking for Senators Lieberman and Warner, Bingaman and Specter, we have in this bill a provision of the 

bipartisan Bingaman-Specter bill which does deal with this whole 

issue of imports from countries that don’t have the same rules. 

But I have to tell you, there is no way that I am sitting back and 

letting China lead the world on this. That would be an outrage for 

our Country. We are the leader. We have always been the leader. 

We are going to absolutely address this issue on the floor of the 

Senate. It is already in the bill, and we could even tighten it. 

But anyway, let’s move on and hear our witnesses. The majority 

witnesses are Mr. Inkley and Ms. Siegel. Mr. Horn is the Republican witness. 

Will you take your seats? And we will go just down the line. We 

are very happy that you are here. I am disappointed we don’t have 

the Administration here, but we are going to listen to you all. We 

will start with Dr. Inkley. We will give you 7 minutes instead of 

5 minutes because we only have one panel, so 7 minutes each. 

76 

STATEMENT OF DOUGLAS B. INKLEY, SENIOR SCIENTIST, 

NATIONAL WILDLIFE FEDERATION 

Mr. INKLEY. Good morning, Madam Chairman. I am Dr. Doug 

Inkley, the Senior Scientist for the National Wildlife Federation. I 

can tell you that on behalf of the National Wildlife Federation’s 

four million members and supporters, we do greatly appreciate the 

opportunity to be here. 

Thank you, Senator Inhofe, for being here. 

And thank you, Senator Barrasso. As a graduate of the University of Wyoming, I am pleased to see that you are here today. 

The National Wildlife Federation is actually here today because 

we are greatly concerned about climate change and its impact on 

the polar bear. I have personally had the privilege of viewing more 

than 40 polar bears in the wild. It is indeed a very magnificent 

creature and it has a very unique lifestyle of living virtually on top 

of the Arctic Ocean on a thin layer of ice. 

The National Wildlife Federation supports the U.S. Fish and 

Wildlife Service’s proposal of January, 2007 to list the polar bear 

as a threatened species. Since that proposal was first put out, the 

evidence has become even more overwhelming than it originally 

was. The USGS, United States Geological Survey, in September, 

2007 released nine scientific studies and came to the conclusion 

that fully two-thirds of the polar bear population in the world is 

likely to be gone by the year 2050 if we continue business as usual. 

That would include all of the polar bears in Alaska. 

In fact, that decline has already begun. We know that in the 

western Hudson Bay population near Churchill, Manitoba that the 

polar bears are already declining because of the melting of the ice. 

We know that in the United States up in the Beaufort Sea, the 

polar bears are already declining there as well. It is harder to know 

exactly what is happening in the Chukchi Sea because there is a 

lot of information that is missing about that population. It has not 

been studied intensively since the 1990’s. 

We must do everything that we can to minimize the potential 

harm to polar bears and their habitat. This includes, first and foremost, reducing global warming pollution, but it is also important 

to avoid other potentially harmful activities to these species that 

are threatened. Those activities could include things such as oil 

and gas exploration, as has been proposed in the Chukchi Sea. We 

are disappointed, the National Wildlife Federation is, that the Administration has chosen to go ahead with the oil and gas leasing 

in the Chukchi Sea without the benefit of the additional peer-review process that would go on through the Endangered Species Act 

protections. 

It is troubling to me that the Administration has concluded in its 

proposal to list the species as a threatened species, and apparently 

Senator Kempthorne restated, you said in the letter yesterday, that 

there will be no significant impact of oil and gas on polar bears in 

the Chukchi Sea. Well, this is in direct contradiction to another 

branch of the Department of Interior, and that is the Minerals 

Management Service. It states in its final environmental impact 

statement that if an offshore oil spill occurs, a significant impact 

to polar bills could result. I don’t know how to resolve these two 

differences. On the one hand, the Administration is saying there 

77 

will be an impact, and on the other hand, it is saying there will 

not be an impact. 

The polar bear really is already skating on thin ice. Every day 

that the Administration delays in taking action to list the species 

as a threatened species makes the situation all the more precarious. 

The National Wildlife Federation is also here today because we 

are concerned about climate change and its impact on our Nation’s 

and our world’s plant and animal species. The Intergovernmental 

Panel on Climate Change has concluded that if we continue business as usual in terms of greenhouse gas emissions, some 20 percent to 30 percent of the species around the world could move closer to the edge of extinction within the lifetime of children born 

today. That is exceedingly rapid. 

Already, the elkhorn and the staghorn coral have been listed, 

partly because of the impacts of climate change. They were the first 

species ever under the Endangered Species Act to be listed because 

of climate change. Now, we are looking at the possibility of listing 

the polar bear. As I already indicated, the evidence to do that is 

overwhelming. Just last week, the National Marine Fisheries Service said it is examining the status of four species of seals in the 

Arctic Ocean to determine if they should also be listed under the 

Endangered Species Act because of the rapid melting of the Arctic 

ice. 

Each one of these species is really like a fire alarm going off. We 

can pretend that we don’t hear the fire alarm. We can pretend that 

the fire isn’t real, but in fact something is amiss, and if we continue to ignore it, we will do more harm than good. Instead of ignoring the fire alarm, as indicated by these many species that are 

now needing to be listed because of global warming, instead the appropriate action is to put out the fire by reducing greenhouse gas 

emissions, the root cause of the problem. 

Last, and certainly not least, the National Wildlife Federation is 

here today because we are greatly concerned about climate change 

and its impact on all of the many natural resources which we humans are critically dependent upon: our water supply, our food 

supply, our wood supply, the diverse ecosystems that provide so 

many goods and services to us as human beings. To continue along 

the same path of greenhouse gas emissions is a serious risk to our 

well being as humans, to our economy, and to our wildlife species. 

These are not risks that the members of the National Wildlife Federation are willing to take. 

In closing, I would like to say that the National Wildlife Federation urges Congress to quickly take action to address climate 

change by limiting our carbon emissions through a mandatory capand-trade program to achieve a 2-percent annual reduction. Further, that legislation should invest in America’s future by including 

dedicated funding for the conservation of natural resources affected 

by climate change. 

If action is not taken soon to address this underlying issue of climate change that is causing the endangerment of wildlife, I fear 

that my own experience with the polar bears is not something that 

our grandchildren will be able to see. It is my concern that the only 

78 

polar bears they ever see will be behind bars or simply pictures in 

a book. 

Thank you very much, Madam Chairman. 

[The prepared statement of Mr. Inkley follows:] 

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1Stirling, I. and A.E. Derocher. 2007. Melting Under Pressure -The real scoop on climate 

wanning andpolar bears. The Wildlife Professional. Fall, 2007. The Wildlife Society. 2Regehr, E. V., N. J. Lunn, I. Stirling, and S. C. Amstrup. 2007b in press. Effects of earlier 

sea ice breakup on survival and population size of polar bears in Western Hudson Bay. Journal 

of Wildlife Management. 71(8). 3The University Corporation for Atmospheric Research, Abrupt Ice Retreat Could Produce IceFree Arctic Summers by 2040 http://www.ucar.edu/news/releases/2006/arctic. shtml (Dec. 11, 

2006). Sea ice may be gone by 2012, scientist says. Dramatic rise in Arctic melting prompts 

worry Associated Press. Wednesday, December 12, 2007 http://www.nasa.gov/topics/earth/features/seaice conditions feature.html. 4USGS Science Strategy to Support U.S. Fish and Wildlife Service Polar Bear Listing Decision 

Forecasting the Range-wide Status of Polar Bears at Selected Times in the 2151 Century Steven 

C. Amstrup, Bruce G. Marcot, and David C. Douglas. 2007. 

RESPONSES BY DOUGLAS B. INKLEY TO ADDITIONAL QUESTIONS

FROM SENATOR BOXER

Question 1. As a scientist who has studied polar bears in the wild and is familiar 

with the latest peer reviewed scientific research, do you agree with Mr. Horn’s assertions that polar bear populations are healthy and sustainable?’’ and ‘‘What evidence is there that polar bears are already seeing the results of climate change?’’ 

Response. The total polar bear population is estimated at about 20,000 or so animals across their entire range, with recent increases in some areas due to improved 

management restricting excessive take. Canadian researchers Ian Stirling and Andrew Derocher reported that of the 13 polar bear populations in Canada/Greenland, 

five were declining and two others were severely depleted due to over-harvest but 

are being managed for recovery. Five populations were stable and one which was 

increasing.1

While the current population level gives the illusion of general stability, a closer 

examination reveals that in fact some polar bear populations are not healthy. In the 

Western Hudson Bay the annual average ice cover period has decreased nearly 3 

weeks injust.20 years, providing less time for polar bears to hunt and gain weight, 

and longer summer fasting periods. The resulting decline in average bear weight 

has reduced cub survival and the overall population.2 As a result of loss of sea ice 

from climate change,3 USGS scientists have projected that 2/3 of the world polar 

bear population, including all U.S. polar bears, are likely to be gone by 2050.4 It 

is impossible to avoid the conclusion that notwithstanding the number of polar bears 

today, signs of decline are already evident and the population is not sustainable. 

Question 2. Do you agree with Mr. Horn’s assertion that 50 years is ‘‘genuinely 

unforeseeable future’’ and too long a period to be considered when listing species?’’ 

Response. The determination of ‘‘foreseeable future’’ should be based on the reality of how long a particular action will affect a species, not an arbitrary and 

unscientifically based number. The emission of carbon dioxide clearly will have significant and measurable effects on our environment for at least 50 years and beyond 

because of its longevity in the atmosphere and its warming of the atmosphere. Ignoring this long-term but very real impact would circumvent requirements of the 

Endangered Species Act (ESA) to use the best available science in determining the 

status sofa species. Furthermore, the ESA has no provisions allowing scientific assessments to categorically exclude or ignore particular types of impacts. 

Another factor in determining ‘‘foreseeable future’’ is the life history of the particular species under consideration. Some species live for many decades (whales) or 

even centuries (trees), and others require specific habitats that may take centuries 

to develop. Successful conservation of these types of species must take into account 

any and all factors that are likely to affect the species. In the case of the polar bear, 

ignoring the foreseeable consequences of climate change would be nothing less than 

willful neglect, and a prescription for extinction. 

Senator BOXER. Thank you, Doctor, very much. 

Mr. Horn. 

STATEMENT OF WILLIAM P. HORN, BIRCH, 

HORTON, BITTNER AND CHEROT 

Mr. HORN. Good morning, Madam Chair. Thank you. 

My name is William Horn. I appreciate the opportunity to appear 

today. My testimony reflects my prior tenure as Assistant Secretary of Fish, Wildlife and Parks at Interior under President 

92 

Reagan, and is also on behalf of the United States Sportsmen’s Alliance. 

Our position is that it would be a mistake to list as threatened 

the presently healthy and sustainable polar bear populations. This 

action will produce a variety of adverse consequences including a 

precedent that opens Pandora’s box in the form of a cascade of 

other unwarranted listings that will diminish resources available 

for bona fide wildlife conservation and recovery, prompting new 

rounds of litigation and judicial activism that will enormously expand ESA’s reach, and harming existing successful polar bear conservation programs in Canada where 13 of 19 sustainable polar 

bear populations are presently found. 

The listing of presently healthy species exhibiting no present trajectory toward endangerment based on hemispheric models, forecasting problems 50 years in the future is a radical new approach 

for implementation under the ESA. It pushes the legal term 

‘‘foreseeability’’ well over the horizon. It is predicated on highly uncertain intervening events where it is difficult, if not impossible, to 

tie those events directly to specific on-the-ground circumstances or 

specific projects in the lower 48 States. 

The listing of many otherwise healthy species will be one of the 

outcomes of going down this track. By stretching the ESA and listing such species, finite monetary and staff resources will be diverted from conservation of species facing bona fide imminent 

threats and where the professional wildlife managers at the Fish 

and Wildlife Service are actually capable of taking conservation actions vis-a-vis those species. That, in my opinion, is bad conservation strategy and bad policy. 

ESA defines a threatened species as one likely to become endangered within the foreseeable future. For 35 years, foreseeability has 

meant imminent adverse effects expected or predicted to occur 

within a few years, or adverse population trajectories expected to 

continue or worsen absent major changes. In addition, the concept 

of foreseeability in our legal system has always included notions of 

proximity and imminence. The polar bear listing would obliterate 

these concepts and fundamentally recast ESA. 

For example, if climate change occurs and has some of the predicted impacts in other areas of North America, it follow then that 

presently healthy species that may be adversely impacted by such 

changes 50 years or more from now must be listed today under the 

ESA. That is Pandora’s box in the form of a cascade of listings that 

will have enormous consequences. 

Polar bear listing will also expand ESA’s regulatory scope. The 

predicate of listing is that the greenhouse gas emissions are triggering melting of Arctic Sea ice upon which the bears depend. Yet, 

ESA provides, and the Fish and Wildlife Service certainly does not 

possess, any authority or expertise to regulate such emissions on 

a national, hemispheric or global basis. Nonetheless, the agency 

will be pressed via its Section 7 consultation requirements well beyond its expertise and capabilities to become the uber-regulator, if 

you will, of our Nation’s greenhouse gas-emitting electrical and 

transportation systems. I don’t think Congress ever intended that 

when it enacted the statute in 1973. 

93 

Any activity or set of activities that individually or cumulatively 

results in greenhouse gas emissions will likely be subject to Section 

7 consultation. This will cause Fish and Wildlife to wrestle with extremely difficult causation or linkage issues between specific actions and forecast Arctic climate change. When a new or expanded 

highway is to be built, what contribution, if any, to Arctic ice melting will be made by greenhouse gas emissions attributable to that 

project? What kind of evaluation must Fish and Wildlife be able to 

conduct for a new power plant for it to fulfill its consultation obligations regarding that power plant’s prospective effects on Arctic 

Sea ice melting and polar bears? 

Any such connections would be highly attenuated at best, and 

Fish and Wildlife Service’s wildlife professionals, no matter how intelligent or well trained, are not in a position to make empirically 

sustainable connections between specific projects, hemispheric 

warming, and harm to the polar bears. 

That yields two alternatives. Fish and Wildlife can make no connections or linkages so that the listing of the polar bear will not, 

in turn, trigger any mandated reductions in domestic gas emissions, or all such emissions, especially cumulatively, are connected 

to Arctic ice melting so all emission-causing activities become subject to Fish and Wildlife review under Section 7. 

In the first case, polar bear listing is a mere gesture. It does 

nothing to address the root issue that is being discussed by some 

of the other witnesses. In the second case, Fish and Wildlife Service is forced to be the new regulator of domestic greenhouse gas 

emissions, a task which it is ill-suited and frankly cannot perform. 

Let me just conclude with a comment on listing delays. Delays 

have been endemic in the listing process for at least the last 15 to 

20 years. That has been especially the case since the listing process 

is increasingly driven by third-party petitions and repeated court 

litigation. I think it is safe to say that during the Clinton administration, Secretary Babbitt wrestled with an absolute avalanche of 

lawsuits that put the Service well behind the eight-ball in cases 

such as the lynx, which were 250 days behind schedule. These 

types of delays, particularly the one we are seeing right now, are 

nothing new and they frankly are part and parcel of the litigationdriven listing process that presently afflicts the program. 

Let me conclude by saying that we are convinced that pushing 

the Fish and Wildlife Service into this broad regulatory arena via 

listing of the polar bear does not serve tangible wildlife conservation. It is a role that FWS was never intended to fulfill. Practically, 

funds are barely available today to run the refuge system, the migratory bird program, the fisheries programs, places where the 

Service and its wildlife professionals are fully capable of doing an 

on-the-ground job providing tangible conservation benefits to an 

array of fish and wildlife species. 

We fear that forcing FWS into this expanded air emissions regulator role will cost a ton of money, take a lot of staff, it has to come 

from somewhere, and our fear is that the agency’s traditional and 

effective refuge, bird and fisheries programs are likely to be 

stripped and diminished and harmed, and that is not good public 

policy. 

Thank you very much. 

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[The prepared statement of Mr. Horn follows:] 

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Senator BOXER. Thank you, sir, very much. 

Ms. Siegel. 

STATEMENT OF KASSIE R. SIEGEL, DIRECTOR OF THE CLIMATE, AIR AND ENERGY PROGRAM, CENTER FOR BIOLOGICAL DIVERSITY 

Ms. SIEGEL. Thank you so much, Madam Chairman and members of the Committee, for the opportunity to be here today, and 

thank you so much for your leadership on global warming and 

polar bear conservation. 

Polar bears are poised to become one of global warming’s first 

victims, and polar bears need our help. Because the Endangered 

Species Act is our strongest and most successful law for the protection of plants and animals on the brink of extinction, the Center 

for Biological Diversity filed a petition to list the polar bear under 

the Act because of global warming back in February, 2005. 

Congress has added the strict deadlines to the listing process to 

ensure that it is completed in no more than 2 years. The Bush administration has missed every single deadline in the listing process. The Administration’s failure to make the first two required 

findings on the petition was resolved by a lawsuit brought by the 

Center for Biological Diversity, NRDC and Greenpeace in 2005. As 

a result of a consent decree a court order—in that case, the Administration proposed to list the polar bear as a threatened species on 

January 9th, 2007. That proposal triggered a mandatory deadline 

to publish a final listing determination for the polar bear in the 

Federal Register no later than January 9th of this year. 

On January 7th, the Fish and Wildlife Service Director announced they would not meet the deadline, but intended to issue 

a decision within 30 days. After an additional 60 days went by 

without action, our groups again went back to court to enforce the 

deadline. Just this morning, we have filed our court motion in that 

case asking the judge to set a hearing for May 8th and to order 

Secretary Kempthorne to issue the final listing decision within 1 

week of that date. Had the Administration followed the law in the 

first place, the polar bear would have been listed in February 2007. 

Instead, we have had to obtain court orders for every step of the 

process. There is still time to save the polar bear if we act quickly, 

but the window of opportunity to act is closing while the Administration continues to block progress. 

We need three essential steps. First, we need to list the polar 

bear under the Endangered Species Act. Second, we need to protect 

the Arctic and the species most at risk there from further direct 

impacts like oil and gas development and like oil spills. And third, 

we need new Federal legislation that caps and rapidly reduces 

greenhouse gas emissions in this Country overall, like carbon dioxide of course, but also including a full-court press on other pollutants like methane and black carbon that have shorter atmospheric 

lifetimes and a huge warming impact in the Arctic. 

The Secretary of Interior with direct influence over the first of 

these two steps is doing the exact opposite. On February 6, the 

Minerals Management Service sold off millions of acres of polar 

bear habitat in the Chukchi Sea to the highest oil company bidder 

in Chukchi lease sale 193. Had the polar bear been listed prior to 

102 

February 6th as the law required, that sale could not have gone 

forward absent substantial additional review on the impacts to 

polar bears under the Endangered Species Act. By illegally delaying the polar bear decision, the Interior Department avoided its 

duty to analyze the impacts to polar bears prior to handing out entitlements to oil companies, and these impacts are devastating for 

polar bears. 

There is a 40 percent chance of a major oil spill over the life of 

this project. Polar bears that come into contact with oil will attempt to groom themselves to remove the oil. They will ingest it 

and they will die. There is no way to effectively cleanup spilled oil 

and broken ice conditions, and the Chukchi Sea is one of the most 

remote, extreme and inaccessible environments on the planet. We 

have no way to deal with a major oil spill in this area. 

By holding the sale prior to listing the polar bear, the Interior 

Department lost one of its most important management tools, to affirmatively protect and recover wildlife, the Section 7 consultation, 

in which the agencies must ensure that their actions do not jeopardize a listed species or adversely modify its critical habitat. It is 

not for a political appointee to predetermine the outcome of this 

process, but rather to let the scientists do their job and do the analysis. It wasn’t done. 

We don’t believe that the required findings under the Endangered Species Act for Chukchi sale 193 to go forward could have 

been lawfully made had the polar bear been listed. But had the 

Fish and Wildlife Service done so, that decision would have been 

subject to judicial review ensuring accountability. Instead, the Interior Department held up the listing and rammed through the lease 

sale, setting up the potential for an expensive taxpayer buy-out of 

these leases. We are also in court challenging Chukchi sale 193 and 

we certainly hope to have it overturned. But the fact remains that 

these leases should never have been listed in the first place. 

The more rapid than expected melting of the Arctic demands an 

accelerated response. There was less ice in the Arctic in September, 

2007 than more than half the world’s leading climate models 

project would be there in 2050. This requires a precautionary approach. We support a moratorium on oil development throughout 

the Arctic. While there are many reasons that the Chukchi sale 

193 should not go forward, at a minimum this and other oil development in polar bear habitat should not proceed until the polar 

bear is listed, its critical habitat is designated, a recovery plan is 

in place, and then only if the agencies can affirmatively demonstrate that these activities are truly compatible with polar bear 

conservation. 

Thank you so much. 

[The prepared statement of Ms. Siegel follows:] 

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RESPONSES BY KASSIE R. SIEGEL TO ADDITIONAL QUESTIONS

FROM SENATOR BOXER

Question 1. What are the ramifications of holding the Chukchi Sea oil and gas 

lease sale prior to listing the polar bear? 

Is it too late for the FWS to apply protections? 

Had the polar bear been listed under the Endangered Species Act by January 9, 

2008, the Chukchi Lease Sale 193 could not have proceeded absent substantial additional environmental review on the impacts to polar bears. At the same time that 

one Interior Department agency, the U.S. 

Fish and Wildlife Service (‘‘FWS’’), failed to meet the mandatory, legally enforceable deadline for a final polar bear listing decision, another Interior Department 

agency, the U.S. Minerals Management Service (‘‘MMS’’), auctioned off millions of 

acres of prime polar bear habitat to oil companies for oil and gas development in 

the Chukchi Sea. Had the polar bear been listed by January 9, 2008 as the law required, the Chukchi Lease Sale 193, described below, would have been subject to 

the Endangered Species Act Section 7 consultation process for the polar bear, a rigorous environmental review designed to ensure that activities associated with the 

lease sale would neither jeopardize the continued survival of the species nor adversely modify its critical habitat. Rather than undertake a good faith analysis of 

the impacts of Chukchi Lease Sale 193 on the polar bear prior to holding the sale, 

the administration instead ignored its duty to do so by illegally delaying the polar 

bear listing until after the Lease Sale was completed. The administration deliberately handed out entitlements to oil companies for activities incompatible with 

polar bear conservation in prime polar bear habitat prior to analyzing their impacts 

on the species. 

A. The Offshore Oil and Gas Leasing Process and Chukchi Sale 193 

Offshore oil and gas leasing is carried out pursuant to the Outer Continental 

Shelf Lands Act, 43 U.S.C. § 1331–56 (‘‘OCSLA’’), which authorizes the Secretary 

of the Interior to grant leases for the exploration, development, and production of 

oil and gas resources from the submerged lands of the United States outer continental shelf. OCSLA establishes a five-step process for oil and gas development on 

the outer continental shelf. First, under Section 18, the Secretary must adopt a 5- 

year leasing program that sets forth a proposed schedule of lease sales. 43 U.S.C. 

§1344. Second, the Secretary may then sell any lease to the ‘‘highest responsible 

qualified bidder.’’ Id. at §1337. Third, lease holders conduct oil and gas exploration 

pursuant to an approved exploration plan. Id. at §1340. This is followed by development and production of the oil and gas found. Id. at §1351. The fifth and final step 

of the OCSLA process is sale of the recovered oil and gas. Id. at §1353. 

The most recent 5-year plan covers the years 2007–2012 and went into effect on 

July 1, 2007. The 2007–2012 Outer Continental Shelf Oil and Gas Leasing Program 

is the culmination of the administration’s energy policy, furthering our national addiction to fossil fuels, contributing to global warming, and at the same time directly 

despoiling the habitat of polar bears and other imperiled wildlife. The program 

schedules 21 lease sales in eight planning areas across the Nation; 12 sales are 

scheduled for the Gulf of Mexico, eight off the coast of Alaska, and one off the coast 

of Virginia. A total of five sales, including Chukchi Sale 193, are scheduled for the 

heart of polar bear habitat in the Chukchi and Beaufort Seas, our nation’s ‘‘Polar 

Bear Seas.’’ 

The Chukchi Lease Sale 193 was the first lease sale held under the 2007–2012 

Outer Continental Shelf Oil and Gas Leasing Program. On February 6, 2008, the 

MMS offered thirty million acres of prime polar bear habitat to oil companies for 

leasing, and received $2.7 billion in high bids. The MMS then had 90 days to conduct a fair market valuation of the bids and decide whether or not to issue the 

leases. The Secretary of the Interior retained full discretion to reject any or all of 

the bids, and not to issue the leases. 30 C.F.R. § 256.47. The Secretary should have 

done so because the polar bear listing decision had been illegally delayed, and because the listing would call into question the ability of the high bidders to legally 

conduct oil and gas activities in the Chukchi Sea planning area. See 30 C.F.R. § 

256.47(b). If the bids had been rejected, and the leases not issued, then the Minerals 

Management Service would simply have had to refund the deposits received plus 

any interest due. 40 C.F.R. § 256.47(e)(2)(h). The Secretary, however, chose not to 

do so, but proceeded to issue leases while continuing to illegally delay the polar bear 

listing decision. 

The Center, along with a coalition of Alaska Native and conservation organizations has challenged the decision to hold the Chukchi lease sale. Native Village of 

Point Hope, et al. v. Kempthorne, et al., 08-cv–00004-RRB. The lawsuit, filed shortly 

before the lease sale, challenges the inadequacy of the environmental documents 

144 

1The 95 percent Confidence Interval is 27–54 percent chance of a major oil spill. 

conducted under the National Environmental Policy Act (NEPA) and under the ESA 

(for species other than the polar bear, which is not yet listed). A favorable court decision could invalidate the sale and the leases, and avoid an expensive taxpayer buyout of the leases and windfall profit for the oil companies. However, by illegally delaying the polar bear listing decision to hold the sale without analyzing the impacts 

of the sale on polar bears under the Endangered Species Act, the administration has 

deprived the polar bear of the protection it needs and deserves today, and has set 

up a future train wreck that may require yet another expensive taxpayer buy out 

of the oil company leases. 

B. Overview of Impacts of the Chukchi Lease Sale 193 

The Chukchi Sea is one of the most remote, extreme, and little studied areas of 

the planet. There is much about the ecology of the area that is still unknown to 

science. For example, there is no reliable population estimate for the Chukchi Sea 

population of polar bears, nor is there a reliable population estimate for ringed 

seals, spotted seals, ribbon seals, or bearded seals, or for many other species. Yet 

the information that is available indicates that we have every reason to be extremely concerned about the impact of oil and gas development on the polar bear 

and the marine environment. 

According to the MMS’s own EIS for Chukchi Lease Sale 193, there is a 40 percent chance of a large oil spill over the lifetime of the oil and gas activities to be 

carried out under the lease sale (MMS 2007: IV–20).1 Polar bears that come into 

contact with oil will generally groom themselves in an attempt to clean the oil, will 

ingest it, and will die. For those few polar bears that do not die immediately, or 

that are subject to smaller concentrations of oil, they ‘‘would be very susceptible to 

the effects of bioaccumulation of contaminant associated with spilled oil, which 

would affect the bears’ reproduction, survival, and immune systems and suppress 

the 

Oil and gas development will impact polar bears in multiple ways in addition to 

oil spills. For example, seismic activities may disturb polar bears and/or their prey 

and could cause them to abandon an area all together. MMS acknowledges that 

some of these potential impacts, such as seismic activities in open water, simply 

have not been studied (MMS 2007: IV–164). These activities may interact with global warming in a cumulative and synergistic fashion. While a healthy bear population may be able to withstand some disturbance, for a population already stressed 

due to global warming, melting sea ice, and changing food availability, additional 

disturbance and energetic costs could be extremely harmful and could cause the 

death of individual bears, contributing to a population decline. 

Oil and gas development activities will also increase human-bear interactions, 

which often prove fatal to the bears. The MMS admits that developments along the 

Alaskan Arctic coast ‘‘undoubtedly will increase the number of polar bear—human 

conflicts that occur’’ and that ‘‘even with the best mitigation measures in place, it 

is certain that some bears will be harassed or killed as a result of industrial activities in their habitat’’ (MMS 2007: IV–164). 

Despite this information on the adverse impacts of oil development in the Chukchi 

Sea on the polar bear, the Department of Interior illegally delayed the polar bear 

listing decision while rushing to approve the Chukchi Lease Sale 193, thus avoiding 

its duty to ensure that the oil and gas activities will not jeopardize the continued 

existence of the polar bear. 

C. The Consequences of the Listing Delay 

The primary consequence of holding the lease sale prior to listing is that the procedural and substantive obligations of Section 7 of the ESA, which might preclude 

leasing in the first instance, were not be applied until after rights had already been 

transferred to the highest oil company bidders. 

Section 7(a)(2) requires that: 

Each Federal agency shall, in consultation with and with the assistance of the 

Secretary, insure that any action authorized, funded, or carried out by such agency 

is not likely to jeopardize the continued existence of any endangered species or 

threatened species or result in the destruction or adverse modification of [critical] 

habitat of such species. 

At the completion of consultation FWS issues a biological opinion that concludes 

whether or not the action is likely to jeopardize the species (or adversely modify any 

designated critical habitat). 

During the course of consultation, Section 7(d) prohibits both agencies (e.g. MMS) 

and permit tees (e.g. the oil companies) from making ‘‘irreversible and irretrievable’’ 

commitments of resources. 

145 

After initiation of consultation required under subsection (a)(2) of this section, the 

Federal agency and the permit or license applicant shall not make any irreversible 

or irretrievable commitment of resources with respect to the agency action which 

has the effect of foreclosing the formulation or implementation of any reasonable 

and prudent alternative measures which would not violate subsection (a)(2) of this 

section. 

In sum, if the lease sale had been held after the polar bear were listed under the 

Endangered Species Act, the MMS could not lawfully have accepted bids or issued 

the leases until after it had completed consultation with FWS and received a nojeopardy biological opinion. We do not believe that the lease sale as proposed could 

lawfully receive a no-jeopardy opinion (see ‘‘jeopardy’’ definition, supra). Certainly 

as a procedural matter, because FWS stated in the polar bear listing proposal that 

it doesn’t have enough information to designate the polar bear’s critical habitat 

(areas that are essential to the survival and recovery of the species), FWS cannot 

at the same time affirmatively conclude that turning a huge swath of habitat into 

an oil and gas production zone will not jeopardize the species. 

Because the sale was held prior to listing, only the requirements for a conference 

opinion applied. 

Each Federal agency shall confer with the Secretary on any agency action which 

is likely to jeopardize the continued existence of any species proposed to be listed. 

16 USC § 1536(a)(4). 

Critically important, the prohibition of irreversible and irretrievable commitment 

of resources does not apply for proposed species. 

This paragraph does not require a limitation on the commitment of resources as 

described in subsection (d) of this section. 

16 USC § 1536(a)(4). 

In other words, even if the lease sales would ultimately result in jeopardy to the 

polar bear, MMS is not precluded from issuing them if the bear is not yet listed. 

Once the bear is listed the provisions requiring reinitiation of consultation would 

apply because the sale has already occurred. 

Reinitiation of formal consultation is required and shall be requested by the Federal Agency or by the Service, where discretionary Federal involvement or control 

over the action has been retained or is authorized by law and: 

(d) If a new species is listed or critical habitat designated that may be affected 

by the identified action. 

50 CFR § 402.16. The key term here is ‘‘discretionary.’’ We believe the Secretary 

retains discretion over the leases and would need to enter into consultation on the 

effects of the lease sale. However, under the Bush administration, Federal agencies 

have consistently taken the position that an action is complete once a permit or 

lease is issued and therefore reinitiation of consultation is not required. It is therefore not certain that consultation on the impacts of the lease sale will happen once 

the polar bear is listed. 

Even if MMS and FWS do in fact reinitiate consultation over the Chukchi Lease 

Sale 193 when the bear is listed, it is an open question whether MMS would cancel 

or suspend the leases if there is a jeopardy finding. OCSLA states that MMS can 

suspend a lease if there is a threat of serious, irreparable, or immediate harm or 

damage to life (including fish and other aquatic life), or to the marine, coastal, or 

human environment. 

43 USC § 1334(a)(1)(B). While we believe a jeopardy finding would meet this criteria we are unaware of MMS ever suspending a lease sale for reasons of a jeopardy 

finding. Following suspension, MMS can only cancel a lease for such reasons after 

5 year of suspension, and after a hearing, with the lessee entitled to compensation. 

43 USC § 1334(a)(2)(B) & (C). 

While eventual listing of the polar bear would trigger ESA review of later stages 

of the oil development process (exploration and development) and might require retrospective review of the already-held leasing process, the key distinction is that 

lease rights will have already been passed to oil company bidders and such leases 

can only be suspended and ultimately canceled after a lengthy and costly process 

to the Federal Government, a process that to our knowledge has never been invoked 

for ESA reasons. 

By holding the lease sale prior to conducting a review of the impacts to polar 

bears, the agencies also lost the flexibility to exclude some areas entirely from the 

leasing. The administration thus created precisely the ‘‘bureaucratic steamroller’’ 

that the ESA and our other environmental laws are designed to avoid. If the FWS 

were to go back and reinitiate consultation on the impact to the polar bear, and 

were to find that the oil and gas activities would jeopardize the polar bear, then 

those leases would have to be suspended and then likely bought back from the oil 

companies at great expense to the American taxpayers. 

146 

In sum, had the polar bear been listed prior to the lease sale, the sale could not 

have gone forward until the FWS had demonstrated that the sale would not jeopardize the continued existence of the species. Moreover, the final outcome of the consultation process would be judicially reviewable, ensuring accountability and compliance with the substantive standards of the ESA. 

Question 2. How will listing the polar bear as a threatened species under the Endangered Species Act help to protect the polar bear? 

Response. The Endangered Species Act is our nation’s safety net for plants and 

animals on the brink of extinction, and our strongest and most successful law for 

the protection of imperiled wildlife. 

The administration’s lengthy delay in issuing a final listing decision deprives the 

polar bear of desperately needed protections afforded by the statue. While the listing 

process itself has benefited the species by raising awareness of its plight and generating new scientific information we would not otherwise have had, the polar bear 

will not receive the regulatory protection it needs and deserves under the Endangered Species Act until it is formally listed as threatened or endangered. Once this 

occurs, an array of statutory protections will apply. 

Critical habitat will have to be designated for the species. As Congress recognized 

in passing the Endangered Species Act in 1973, it is not possible to protect an imperiled animal without protecting the areas where it lives. Sea ice is obviously essential to the species’ survival so such areas will ultimately have to be designated 

as critical habitat. The Act also requires that a recovery plan for the polar bear be 

prepared and implemented. There is no hope for recovery, much less survival, of the 

polar bear absent substantial reductions in greenhouse gas emissions. Any legally 

adequate recovery plan must therefore include mandates to reduce such emissions. 

Two of the primary Endangered Species Act regulatory mechanisms are contained 

in Sections 7 and 9 of the statute. 16 U.S.C. §§ 1536, 1538. Section 7 directs all 

Federal agencies to ‘‘insure through consultation’’ with FWS (or NMFS in the case 

of marine species) that all actions authorized, funded, or carried out by such agencies are ‘‘not likely to jeopardize the continued existence’’ or ‘‘result in the destruction or adverse modification’’ of ‘‘critical habitat’’ of any listed species.’’ 16 U.S.C. 

§ 1536(a)(2). 

In contrast to the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321– 

4375, which requires only informed agency decisionmaking and not a particular result, and is therefore strictly procedural, Section 7 of the ESA contains both procedural (‘‘through consultation’’) and substantive (‘‘insure’’ the action does not ‘‘jeopardize’’) mandates for Federal agencies. As such, the statute can force analysis 

through the consultation process of the environmental effects of a given project and, 

if the project is determined to jeopardize a listed species or adversely modify its critical habitat, trigger modification or cancellation of the project so as to avoid such 

impacts. 

Consultation under Section 7 results in the preparation of a biological opinion by 

FWS that determines if the proposed action is likely to jeopardize the continued existence of a listed species or adversely modify its critical habitat. If the action is determined to jeopardize a species or adversely modify its critical habitat, FWS must 

provide ‘‘reasonable and prudent alternatives’’ that would allow the action to proceed in a manner that avoids jeopardy and adverse modification. In making the 

jeopardy and adverse modification determinations, FWS must utilize the ‘‘best available science.’’ 16 U.S.C. § 1536(a)(2). Through the Section 7 consultation process, the 

FWS can also require measures to minimize and mitigate impacts to listed species. 

As exemplified in the seminal case Tennessee Valley Authority v. Hill, 437 U.S. 

153 (1978), the Section 7 consultation process is the heart of the ESA. The Supreme 

Court stated that Section 7 ‘‘admits of no exception,’’ and affords endangered species 

‘‘the highest of priorities.’’ 437 U.S. at 173–174. Through the Section 7 process, Federal agencies should examine the direct, indirect, and cumulative impacts of any action that may impact the polar bear. This includes not only actions that directly 

harm polar bears or their habitat, but also large sources of anthropogenic greenhouse gas emissions which contribute to global warming. While Bush administration 

officials have stated that global warming is ‘‘beyond the scope’’ of the Endangered 

Species Act, there is no reason greenhouse gas emissions which harm polar bears 

should be treated any differently than pesticides that harm salmon or logging that 

harms owls. (For further information on the application of Section 7 to greenhouse 

gas emission, please see written Testimony of Kassie Siegel to the U.S. Senate Committee on Environment and Public Works April 2, 2008 Hearing, at 18–19). 

While Section 7 only applies to Federal actions and agencies, the prohibitions of 

Section 9 apply far more broadly, reaching the actions of private entities and corporations. Section 9 prohibits the ‘‘take’’ of listed species, which includes ‘‘harming’’ 

and ‘‘harassing’’ members of the species in addition to simply killing them directly. 

147 

Both the legislative history and case law support ‘‘the broadest possible’’ reading of 

‘‘take.’’ Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 

U.S. 687, 704–05 (1995). Activities otherwise prohibited by Section 9 can be permitted through Section 10 of the Act, which requires that the impacts to listed species be minimized and mitigated to the maximum extent practicable. Section 9 will 

clearly apply to direct impacts to polar bears and their habitat; it remains to be seen 

how and if Section 9 will be applied to greenhouse gas emissions. 

Question 3. How would listing the polar bear as a threatened species under the 

Endangered Species Act protect polar bears specifically from the effects of oil and 

gas development? 

Response. Oil and gas activities in polar bear habitat are a double-barreled threat 

to the species: they not only directly disturb and harm polar bears in their habitat, 

but also contribute to global warming. In order to save polar bears, we must both 

rapidly reduce greenhouse gas emissions and reduce other stressors, such as oil and 

gas development and oil spills, in their habitat. 

Listing polar bears under the Endangered Species Act will provide broad protections to polar bears from oil and gas development through the operation of Sections 

7 and 9 of the Act, described above. Because Federal permits are required for the 

majority of oil and gas activities in polar bear habitat, we anticipate that Section 

7 will be the primary mechanism for protecting the species. 

First and foremost, Section 7 consultation will force better and more informed decisionmaking relating to oil and gas activities, including a thorough consideration 

of changing conditions in the Arctic. While the ongoing changes in the Arctic are 

now readily apparent, for the most part, U.S. Federal agencies have utterly failed 

to incorporate this new reality into their decisionmaking affecting the region. With 

the possible exception of the Department of Defense, Federal agencies are making 

planning decisions and issuing permits, authorizations and leases in and affecting 

the Arctic with a near-total disregard for the rapidly changing conditions in the region. This is leading to uninformed and unwise decisionmaking negatively affecting 

the polar bear and the entire Arctic ecosystem. Through the Section 7 consultation 

process, Federal agencies will be required to fully consider changing conditions, 

under the ‘‘best available science’’ standard. 

Federal agencies will also be required to thoroughly review the cumulative impact 

of their approvals and protect the polar bear from jeopardy or adverse modification 

of its critical habitat from the combined impact of many smaller approvals. This is 

vitally important as the Arctic changes rapidly and polar bear populations are increasingly stressed. For example, with less ice, more and more bears are stranded 

on land in areas that are increasingly subject to oil and gas activities. If polar bears 

are to survive in a seasonally ice-free Arctic, these areas must receive maximum 

protection. Endangered Species Act listing will require the consideration of the impact of oil and gas development on polar bears in a warming Arctic, including the 

consideration of the location, timing, and intensity of these activities. Any development that does go forward will have to be carried out in a manner than minimizes 

impacts and is compatible with the long term survival of the polar bear. Management tools available to the Fish and Wildlife Service include restrictions on the timing, location, and intensity of these activities and the incorporation of mitigation 

measures. 

Oil spills pose a grave risk to polar bears because polar bears that are coated in 

spilled oil will almost certainly die, and because there is still no way to effectively 

cleanup oil in broken ice conditions. The Beaufort and Chukchi Seas contain some 

of the most extreme, remote, and inaccessible habitat in the world. Once the polar 

bear is listed, the Fish and Wildlife Service should require oil companies to demonstrate effective methods to deal with oil spills in polar bear habitat prior to proceeding with additional oil development activities. We believe that Section 7’s prohibition against jeopardy or adverse modification of polar bear habitat should prevent 

additional offshore oil development in polar bear habitat at least until such time as 

new, effective measures to clean up spilled oil and prevent direct harm to polar 

bears, their prey, and the marine food chain upon which they depend have been 

demonstrated. 

Senator BOXER. Thank you very much, panel. You were all really 

helpful. 

We are going to have 6 minutes of questioning, and then we will 

come back and forth as required. 

Mr. Horn, is there anything in the Endangered Species Act that 

says if a species is threatened by climate change, the ESA does not 

apply? 

148 

Mr. HORN. No, Madam Chair, it does not. 

Senator BOXER. So then why is this suddenly what we are hearing from, you know, my colleagues here, Senators Inhofe and 

Barrasso and yourself, as if we are doing something wrong here. 

I mean, isn’t the whole purpose of the Endangered Species Act to 

prevent the destruction of species and to save them? 

Mr. HORN. The fundamental precept built into the statute is this 

notion, at least in terms of the threatened species, is this notion 

of foreseeable endangerment. And associated with that is the ability of the administering agency, in this case the Fish and Wildlife 

Service, to be able to intercede and deal with the particular issues. 

Senator BOXER. I understand. 

Mr. HORN. Therein lies the fundamental problem. No. 1, I am 

convinced that this situation does not cross the foreseeability 

threshold under the law. We have a presently healthy population. 

The trajectory looks fine. What is predicted is an intervening event 

in the form of ice melting 45 to 50 years out, which is predicted 

to reverse the current extrapolated population trends of the species. 

Senator BOXER. Have you heard about the polar bears coming 

into town up in Greenland, where I visited to see the melt, that 

polar bears are now coming into town to search for food, where the 

melt is occurring in Greenland? Have you heard about that? 

Mr. HORN. I have heard about that, and I have been in places 

like Point Hope and Barrow, Alaska when the polar bears came 

into town in the wintertime to feed on the whale carcasses taken 

by the local people. 

Senator BOXER. Well, what is happening over there is they are 

reporting to us, and we were there for quite a few days, that the 

natives of the village there are killing the polar bears and it is very 

distressing to them. They have never had that happen, but they 

are losing their habitat. So you all agree that there is nothing in 

the Endangered Species Act that says if the cause is climate 

change, we don’t act. 

And then, are you aware, Mr. Horn, since you seem to waive off 

the notion of acting in a time-certain way, say, where everybody, 

you know, Babbitt and everybody else did this. Are you aware that 

this was a settlement that was agreed to and signed on the dotted 

line by the Interior Department? As a result of a lawsuit, they 

agreed to make a decision by January 1 and they signed on the 

dotted line. Are you aware of that? 

Mr. HORN. I am aware of that. I can tell you from past experience that one of the fundamental problems is that the Department 

and the Fish and Wildlife Service are under such an avalanche of 

judicial orders and directives in which essentially its administrative discretion has been hijacked by the courts, that the agency is 

hardly in control of its schedule any longer. That is a fundamental 

problem that has afflicted them. 

Senator BOXER. How many lawsuits are they facing in terms of 

endangered species right now? 

Mr. HORN. I don’t have those numbers at my fingertips. I know 

that the numbers have increased dramatically. 

Senator BOXER. Well, if you don’t know that, you can’t say that. 

So my point is, I am a law-abiding person, and if I sign a court 

149 

settlement that says I have to do something by a date certain, I 

better do it or I could even, in another case in point—not this 

case—I might even have to go to jail. So the fact is that this is unlawful, and to see a former Government official sort of waive it off 

is distressing to me. I know you are a good person and you did good 

work in the Reagan administration because I know there were 

many more listings under the Reagan administration that we have 

had here by five-fold. But the point is, waiving this deal off is a 

bad signal to send to us and to our children. 

Now, Dr. Inkley, Mr. Horn has said foreseeable future, we really 

shouldn’t have to act on the polar bear. You spent some time in the 

environment there. Do you see signs of trouble? 

Mr. INKLEY. Well, certainly yes, I have been in the Arctic, and 

it is very well established by the observations that have been made 

by satellite and by NASA that the ice is declining very rapidly. As 

a result of the observations that were made in 2007 when there 

was a record decline, one of the NASA scientists concluded that all 

of the ice in the summertime could be virtually gone by the year 

2012. That is an incredible acceleration over the previous projections as to how fast the ice would be melting. So I think that what 

is happening in the Arctic is definitely, definitely within the foreseeable future. 

Senator BOXER. Yes. I mean, the USGS says two-thirds of the 

world’s polar bear population could be lost by 2050. Are we supposed to sit around and just watch it happen? Ms. Siegel, is that 

our role, just to sit around and let it happen and have a definition 

of foreseeable future as being 100 years? 

Let me take that back. Mr. Horn’s point is, if they were threatened sooner, we could act, but it is way in the future, 2050, twothirds decline. Do you think that that is an important signal for us, 

that the USGS says two-thirds will be gone? 

Ms. SIEGEL. Our window to act is now. There is still time to save 

polar bears if we take action today, but that window is closing. We 

are committed to additional warming beyond what we have already 

experienced from the greenhouse gas emissions that are already in 

the atmosphere. The Arctic is warming at nearly twice the rate of 

the rest of the planet. We need a full-court press on this problem 

now in order to save polar bears. 

Senator BOXER. Thank you. 

Senator Inhofe. 

Senator INHOFE. Thank you, Madam Chairman. 

Mr. Horn, you are the only one at the table who has had the 

privilege to actually run the ESA program, so you are in a position 

to make some observations. I think that you have said, you used 

the words expertise and capabilities, so I want to make sure that 

we get on the record that do you believe that the FWS is equipped 

and sufficiently funded to regulate and address the alleged cause 

of global warming, in other words, greenhouse gases? 

Mr. HORN. Absolutely not. It is an agency of fish and wildlife professionals. It is not an agency of clean air emissions regulators. 

That is one of the fundamental problems associated with this issue. 

Senator INHOFE. And when you were the Director, how busy was 

the agency? Were you adequately staffed at that time to carry out 

the duties that you had that are prescribed by statute and law? 

150 

Mr. HORN. I think every Secretary of the Interior that I have 

known for 20-some years would tell you that the Service has not 

had sufficient funds available to it through appropriations to deal 

with the number of listings, and that problem has simply gotten 

worse in the last 15 to 20 years. 

Senator INHOFE. So you have observed it since you have been 

gone and feel that it has just gotten worse. 

Mr. HORN. You have had endless petitions come in, and then of 

course when the agency gets behind the eight-ball because of its finite resources, it ends up with a whole welter of conflicting court 

orders, in which one judge says get it done on this day; the other 

judge says no, get it done this day. And the agency is sitting there 

with finite staff saying, which judge do I listen to first? 

They are doing their best. The net result, though, is they are behind the schedule. They are behind the eight-ball very often. 

Senator INHOFE. I have used as an example, and I cannot recall 

right now where I got it, you used some figures just in Canada 

alone, I have been saying, because I read it and it was a documented fact I believe at the time, of the 13 populations in Canada, 

11 of those 13 are either growing or are stable. One of them that 

is not is the western Hudson Bay, which has been used quite a bit. 

Are those figures right? You quoted some figures. I think you were 

talking about total population, not just Canada. Is that correct? 

Mr. HORN. Among the Canadian populations, Canada considers 

11 to be stable and/or increasing; the western Hudson population, 

they have some problems with and there are a variety of issues 

about what are caused by those. So in general, the populations in 

Canada are doing very well. 

Senator INHOFE. OK. And then compared to 30 or 40 years ago, 

the ranges they give us show that it is about four times the population of 50 years ago. 

Mr. HORN. Well, in terms of polar bear conservation itself, the 

international treaties, the Marine Mammal Protection Act and a 

variety of activities undertaken by the U.S. Government, in cooperation with Canada and others, over the last 40 years have been 

extraordinarily successful and have yielded these three to four time 

increases in the bear populations from the mid–1960’s. 

Senator INHOFE. And based on your experience, do you agree 

that it would be difficult to legitimately establish links between 

greenhouse gas emissions in one part of the Country to affect a single polar bear population maybe in Alaska? 

Mr. HORN. Therein lies the real problem. The Fish and Wildlife 

Service is obligated by consultation to look at these projects. Someone comes in to build a particular new highway interchange in 

some location, it has a Federal nexus through funding or a 404 permit, the agency is obligated to consult. How does it determine that 

the emissions attributable to that highway project are the ones 

that are causing the sea ice to melt? How do you make that connection? Is that connection capable of being made? And is the Fish and 

Wildlife Service the agency to do that? 

I think the answer is no. And if they make no connection, then 

this listing of the polar bear basically turns out to be a gesture. If 

there is that type of connection, then Fish and Wildlife is essentially regulating all emissions and that it is not equipped to do. 

151 

Senator INHOFE. My concern would be that there are activist 

judges that would be trying to force this link. Do you agree with 

that? 

Mr. HORN. Yes. And there is a real side problem that I addressed 

in my written statement about takings. There has been a recent 

spate of decisions from the courts that actions by State and local 

agencies to essentially allow their citizens to engage in activities, 

be it driving on a beach or trapping, in the case of Minnesota, can 

result in ‘‘takings’’ under ESA . If the permitted activity unintentionally takes a listed species, the State government is now culpable for violating the Endangered Species Act. My fear would be 

that if a State fails to regulate greenhouse gas emissions, is it 

going to be subject to a lawsuit that it is violating the taking prohibition in the ESA? Under some of these recent decisions, the answer would probably be yes. 

Senator INHOFE. The Chairman is very generous in extending 

your time for an opening statement to 7 minutes. I appreciate that 

very much. But at the very end of your time, you are somewhat 

challenged by the Chairman in terms of not knowing the court orders and the procedures that are pending right now. Do you have 

any kind of a wild guess, educated guess, let’s say? 

Mr. HORN. My guess that it is in the dozens. I would be more 

than glad to talk to the agency and provide that information, either 

directly or ask them to provide it to you. 

Senator INHOFE. Right. Thank you very much. 

Thank you, Madam Chairman. 

Senator BOXER. Thank you very much, Senator. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Madam Chair. 

I see that we have two issues to talk about here today. One is 

the underlying question of the merits of the designation of the 

polar bear as an endangered species. And the second is the administrative procedure and the propriety that has been engaged in 

here. It looks a little bit to this observer as if the endangered species determination was slow-walked on purpose in order that the 

Minerals Management Service could sign leases in order that the 

Administration could convey essentially a financial benefit on the 

lease applicants on the theory that once they had the lease in 

place, they then had a protected property interest that you have to 

buy them back out of. I just want to make sure, and let’s start with 

the latter concern. I would like to ask each of you to speak to it. 

Mr. Horn, let me just ask you real quick. I am trying to find the 

name of the organization that you are with. Is that a law firm? 

Mr. HORN. Well, I am an attorney in town. I am also representing—— 

Senator WHITEHOUSE. So you are a practicing attorney right 

now. And Ms. Siegel, you are a practicing attorney as well? 

Ms. SIEGEL. Yes, I am. 

Senator WHITEHOUSE. Dr. Inkley, are you? 

Mr. INKLEY. I am not an attorney. I am a certified wildlife biologist. 

Senator WHITEHOUSE. Got you. 

Well, on the first question, let me ask Ms. Siegel first. Is that 

the concern here, that this has been a deliberate effort to create a 

152 

protected property interest that taxpayers would then have to bail 

out by slow-walking the determination so that the leases could 

sneak in ahead of it? 

Ms. SIEGEL. That is correct. That is one of the major problems 

with holding the lease sale prior to listing the polar bear. Under 

OCS, the Outer Continental Shelf Lands Act, under which this 

leasing is carried out, once the lease sale is held, if the oil companies cannot later develop those leases because of environmental 

concerns, the lease has to be suspended and then it has to be canceled, and oil companies are entitled to compensation and that is 

an extremely lengthy and cumbersome process. 

Senator WHITEHOUSE. Not to mention expensive for taxpayers. 

Ms. SIEGEL. Exactly, an expensive bail-out, a windfall profit for 

oil companies for a lease sale that should never have gone forward 

in the first place. 

Senator WHITEHOUSE. And if you were to characterize the lease 

applicants here as a special interest, and what has been done to 

them as essentially conferring a benefit that if we had simply been 

patient and let the ESA process work its way through, we would 

not have put the Government in this jeopardy. This has had the 

effect or will have the effect as it goes forward of conveying a very 

significant taxpayer-funded benefit on a special interest. Correct? 

Ms. SIEGEL. That is exactly correct. And you have to ask yourself, what was the rush with Chukchi lease sale 193? The Interior 

Department was under a statutory deadline to issue the polar bear 

decision. They ignored that deadline. There was no rush, no deadline for Chukchi sale 193. It was under the control of the Interior 

Secretary to put off that lease sale. He chose not to. 

Senator WHITEHOUSE. Mr. Horn, as a lawyer, do you agree that 

there is a protected property interest that is created if these leases 

are entered into, and that therefore a benefit is being conferred on 

the lease recipients by virtue of this timing? 

Mr. HORN. I am not in a position to comment extensively on the 

rights and privileges that go with an outer continental lease under 

the OCS Lands Act. I will say this as a factual matter, there have 

been a number of offshore lease sales conducted in the Beaufort 

and the Chukchi since the early 1980’s with apparently no deleterious effects on the bears and no problems with property interests. 

So I add that in as a factual background to this question. 

Senator WHITEHOUSE. You are saying that there have been circumstances in which leases have been entered into, subsequently 

restricted as a result of environmental restrictions and that the 

leaseholders had no property right that was affected by that? 

Mr. HORN. When leases were issued in these circumstances, they 

are always attended by a rather rigorous set of terms and conditions, many of which include environmental stipulations and provisions to address any subsequent environmental issues that crop up. 

Those need to be incorporated into whatever the companies do to 

act under the lease that they have been provided. 

Senator WHITEHOUSE. Do we know if the Administration took the 

prudent step to protect the taxpayers through the Minerals Management Service in writing into these leases a restriction so that 

in the event that the endangered species determination is made, 

153 

there is not a financial benefit conferred on these companies, just 

to protect the taxpayer? Do we know if that was done? 

Mr. HORN. I am not in a position to comment on what the agency 

has done or not done. All I can tell you is that there have been a 

series of OCS lease sales. 

Senator WHITEHOUSE. Dr. Inkley, do you know the answer to 

that question? 

Mr. INKLEY. No. I would have to answer it from the perspective 

of a biologist in terms of what—— 

Senator WHITEHOUSE. Ms. Siegel, do you know the answer to 

that question? 

Ms. SIEGEL. The analyses of the impacts to polar bears that 

should have been conducted under the Endangered Species Act to 

ensure that the lease sale could lawfully move forward once the 

polar bear was listed was not conducted. That was the impact of 

pushing through the lease sale before listing the bear, is that the 

Section 7 consultation, the procedural process, and the substantive 

determination was not made. It will not be made until after the 

lease sale has already been sold. 

Senator WHITEHOUSE. OK. My time has expired. I thank the 

Chair. 

Senator BOXER. Senator, thank you. 

Senator Warner, so nice to see you. 

Senator WARNER. Thank you, Madam Chairman, for holding this 

hearing. I attended the previous hearing that you held. I first want 

to express to you my profound appreciation for my conveying to you 

my concerns about certain aspects of this, and you graciously said 

that you would do it and carried it out. 

So I would simply ask to put my statement in, since I don’t seem 

to have a voice to deliver it. But I am privileged to serve as Ranking Member on the Subcommittee that has jurisdiction over this 

situation. I share with you the concern of the inability of the Department thus far to comply with the letter of the law. 

At the same time, I have had the privilege of knowing Secretary 

Kempthorne for a very long time. I personally had two lengthy conversations with him this week on this subject. I was left with the 

impression that I think shortly he will be conveying to the Chairman, if he has not already done so, that he anticipates decisions 

which are before this full Committee today will be answered in 

compliance with the law here before early summer. 

So I thank each of the witnesses for your testimony. I think we 

have an obligation toward this extraordinary animal, the polar 

bear. I once said in this room for what value it might be, it is 

America’s panda bear and all Americans are in love with it. So I 

think if a vote is taken, it is likely to be a very significant vote, 

if that is necessary to take a vote some day. 

I thank the Chair and I thank my colleagues. 

Senator BOXER. Thank you. 

Senator Barrasso. 

Senator BARRASSO. Thank you, Madam Chairman. 

I have just a couple of quick questions to Mr. Horn. I really want 

to get a handle on the impact of listing the polar bear in terms of 

what you refer to, I think your word was the expanded regulatory 

154 

scope. I have significant concerns of the impact on the communities 

in my State. 

You made reference to an example where counties were held liable for driving on a beach. People come to recreate in the great 

State of Wyoming. They come to look at Yellowstone and the Grand 

Tetons in the summer, to ski in Jackson Hole in the winter. Many 

people are driving. Is that something that with this expanded scope 

of regulation that they could say, hey, what is the impact from 

those vehicles? I wondered if you could just expound on that a little 

bit. 

Mr. HORN. There are two separate problems that crop up under 

the statute. I think first you have referenced the takings issue. You 

have had a series of lawsuits, and there was a recent decision just 

handed down Monday in the U.S. District Court in Minnesota that 

said that where a State allows an activity and that activity inadvertently or unintentionally results in the take or harm to a listed 

species, the State is now culpable for a violation of the Endangered 

Species Act and must stop allowing that activity. This occurred in 

Minnesota with trapping. It has occurred in Florida, where a city 

allowed people to drive on the beach and that was deemed to be 

a taking of sea turtles. There have been a variety of these cases. 

The concern here is that those precedents, enable someone go to 

court and say that a locality by allowing activities that produce 

greenhouse gas emissions is causing Arctic sea ice to melt, harming 

the polar bear, and taking the polar bear. Is that local government 

now culpable under the ESA for allowing that activity to go on? We 

have four or five precedents along that line that I would anticipate 

creative attorneys to take and run with. 

Then on the other side of the equation is Section 7 consultation, 

where the Service has already been pushed to incorporate climate 

change issues into their consultation. There is a Delta smelt case 

in California involving the Sacramento Delta. If the Service has to 

consider all these things and if emissions and their cumulative impact are causing climate change, which is causing sea ice melting, 

which is in turn harming the bears, Fish and Wildlife is going to 

be obligated to consult on virtually every activity that results in 

greenhouse gas emissions. 

I just don’t see how that agency undertakes that enormous task 

given its finite resources and the limitations on its skills and training. It is a professional wildlife agency, not an air regulating agency. But Section 7 is going to drive it into a wide array of emissionsrelated activities that it has never considered before. 

Senator BARRASSO. Thank you very much. 

Ms. Siegel, when he said creative attorneys and then pointed 

your way, I assume that he meant you. Could you address some of 

these issues about emissions under Section 7? Is it the intention of 

your organization if there is going to be a coal-fired power plant 

planning to be constructed someplace, if the polar bear is listed, 

that then you would say, well, we need to use all of our legal abilities to attempt to block that construction? 

Ms. SIEGEL. It is extremely important that the Fish and Wildlife 

Service carry out the Section 7 consultation process in order to protect polar bears. I would like to note that while global warming is 

the primary threat to polar bears, they are threatened by other 

155 

things as well, such as oil and gas development, oil spills, overhunting in some areas, that operate in cumulative and synergistic 

ways in many instances with global warming. 

One of the most important things we can do to help imperiled 

species through this period of rapid warming, to which we are already committed, to give them a better chance of making it, is to 

remove other threats that the species is facing. Section 7 will clearly be very successful in addressing other threats to polar bears. 

We also believe, however, that the Fish and Wildlife Service has 

to address the fundamental problem here, which is greenhouse gas 

emissions, and that the Section 7 consultation process is the appropriate venue to do that in four major sources of greenhouse gas 

emissions authorized or approved by Federal agencies. We think it 

is only fair and right that every Federal agency do its part to comply with existing laws such as the Endangered Species Act, such 

as NEPA, that already address global warming. 

As Justice Stevens wrote in Massachusetts v. EPA, global warming is not the kind of problem that an agency or legislature solves 

in one fell swoop. We have to whittle away at it over time. The Endangered Species Act is not a complete solution to global warming. 

We clearly need new Federal legislation capping and rapidly reducing greenhouse gas emissions, but we think that Section 7 of the 

Endangered Species Act is part of the solution and has an important role to play. 

Senator BARRASSO. Well, that was a creative answer, but I take 

it as a yes. You said it is not a complete solution to global warming, so you do view the Endangered Species Act as part of a solution to global warming. 

Next, if I could, Dr. Inkley, welcome, welcome as a graduate of 

the University of Wyoming. I am happy to see you here. I only have 

a few seconds left, and I would love to visit with you just on the 

biology of this. Have polar bears adapted to massive climate 

changes before over the centuries? 

Mr. INKLEY. Well, the situation is that what we are experiencing 

right now is a very, very rapid climate change and the projections 

clearly indicate that two-thirds of the population will be lost by 

2050. So while the climate on the planet Earth has always been 

changing and many species have had to adjust to that, what we are 

doing now through the release of greenhouse gases is an entirely 

different matter and we can project quite reliably that the polar 

bear population is on the way down. 

I should point out that the status of polar bears in Canada, 

where there are some 13 populations, two of them have been depleted and are in the process of being restored. Those were depleted by hunting. Five of them are actually on the decline, and 

only six are stable. So I would like to correct the information that 

was presented before and point out that this is directly from a published article by the polar bear researchers from Canada, Dr. Andrew Derocher and Dr. Ian Stirling. 

Senator BARRASSO. Thank you, Dr. Inkley. 

Madam Chairman, my time has expired. 

Senator BOXER. Yes. We will have another round just as long as 

you want to stay. 

156 

I want to correct the record on a couple of things. Let me just 

say, straighten it out, and then I will withhold. But I just want to 

say a couple of things. 

First of all, 40 percent of this species are under threat, according 

to the leading scientists in the world. They sat here and told us 

this. Either we are going to fold up our tent and not deal with it, 

or we are going to deal with it. Now, I happen to think as a U.S. 

Senator from California, a State that treasures its wildlife and has 

a lot to protect, as a mother, as a grandma, that I am not going 

to fold up my tent and say, because we have this new threat, let’s 

just forget the Endangered Species Act; it is not equipped to deal 

with it. 

That is why I am such a strong supporter, Mr. Horn, of the 

Lieberman-Warner bill, because in that bill we recognize that, yes, 

the Fish and Wildlife Service is going to have to play a much 

broader role. In that bill, we have a whole title that is dedicated 

to wildlife. Both Senators Warner and Whitehouse played a big role 

in developing this particular part of the bill. 

We will commit the dollars, because you are absolutely right. You 

can’t do this under the current scenario. The fact is, Fish and Wildlife is going to play a major role as we combat global warming. We 

all are going to change. It is not going to be the same Fish and 

Wildlife Service it was in the Reagan years. There is no question 

about that. I was here when Ronald Reagan was President and I 

remember those years. 

I also noted that, Mr. Horn, I am not surprised at your testimony 

because back then, a draft report made public by a department 

Fish and Wildlife Service recommended that all of the coastal plain 

within the Arctic National Wildlife Refuge be opened for oil and 

gas development. William P. Horn, Assistant Interior Secretary for 

Fish and Wildlife, said at a news conference—this is 1986—that 

the Arctic Wildlife Refuge offered the possibility of a super-giant oil 

field that does not exist anywhere else in the United States, and 

basically of course supported that big-time. 

So you know, the fact that you would take this position is pretty 

consistent, I think, with what I see. I also see in your bio that you 

have an active legislative practice. I assume that is lobbying? Is 

that right? 

Mr. HORN. Yes. 

Senator BOXER. Which, by the way, fine. I don’t have any problem with that. I don’t know what you are exactly lobbying for, but 

you work primarily with the Energy and Natural Resources Committee, and it says ‘‘Mr. Horn has secured enactment of numerous 

statutory provisions.’’ I would be interested in what those are. 

I also wanted to ask you, one of your big clients is the Specialty 

Vehicle Institute of America. What is that, a specialty vehicle? 

Mr. HORN. ATV manufacturers. 

Senator BOXER. ATV? 

Mr. HORN. All terrain vehicles, four-wheelers. 

Senator BOXER. Got you. 

So I think that your testimony, put in the context of what you 

do for a living, reflects exactly where you are, as does the two people sitting next to you, what their world is about. So I find it important testimony reflecting a lot of my colleagues here, especially 

157 

Senators Inhofe and Barrasso. I think particularly your point about 

the Fish and Wildlife Service never being able to deal with this is 

a really important point. We have to make sure that they can, because there is nothing in the Endangered Species Act that says we 

walk away when a species is endangered by climate change. 

And by the way, how interesting, for 8 years the Bush administration took the position that the Clean Air Act didn’t give them 

the authority to do a thing about greenhouse gas emissions, even 

though it said in the law explicitly that they could control every 

pollutant that had anything to do with climate change, but they 

didn’t read that sentence, I guess. We had to spend a fortune in 

taxpayer money to litigate, litigate, litigate, and nine times the 

Bush administration has been found to be unlawful under the 

Clean Air Act, this Bush administration, nine times, and all that 

time wasted. 

And now we have more litigation. They are abandoning their 

own agreement that they made to make this decision on time. They 

didn’t have to sign that agreement. They could have said, we are 

not going to do it. But they signed an agreement that said they had 

to come up with a decision on January 1, and then Secretary 

Kempthorne—a very nice friend of mine, I had many talks with 

him—I think he couldn’t be more wrong in saying that he has nothing really to say. He doesn’t want to come up here until after he 

has made the decision. So I just think it is important to put into 

place where everybody is coming from. 

Mr. Horn, I am not picking on you. I am just making a point that 

you have been consistent in your entire career in terms of your attitude toward the dangers of oil and gas drilling, perhaps, on habitat. Fortunately, in 1986, you didn’t get your way and you are still 

not getting your way on that, and hopefully you never will, because 

imagine what that would have done to the species involved. 

So I think this has been a really good intellectual debate here, 

but it also goes beyond that as to what the future holds for the Endangered Species Act. By the way, I didn’t expect that we would 

get that. That is why I was a little stunned when Senator Barrasso 

kind of brought that up. 

But if you are looking in the eyes of the scientists who are telling 

you without a question that 40 percent of God’s creation is threatened, you have to make a decision as a human being and a legislator as to whether or not at that point it is just too hard, shrug 

your shoulders, and say Fish and Wildlife can’t do it. Or you want 

to restructure the way Fish and Wildlife operates and give them 

the tools they need, which is what the Lieberman-Warner bill will 

do. 

Senator Craig. 

Senator CRAIG. Thank you, Madam Chairman. I will be short. 

I must say, Mr. Horn, I love consistency. It is measurable. It is 

valuable, and it brings forth truthful and honest testimony. 

But as a father and a grandfather, I, too, am passionately concerned that we make our public policy work and we don’t attempt 

to use some as a surrogate and a block for others, and that it be 

done responsibly and effectively. 

So let’s step back and talk about the lease. There have been some 

leases offered, and probably some leases, and we don’t know all of 

158 

the details of it, and that is consistent with continued policy. I 

know there might have been a rush to judgment or a push to judgment as it relates to the listing of the polar bear. We don’t know 

what the science will conclude, but the process is underway and it 

is not terribly late in its process. We have watched other Administrations over the years be responsible and timely and miss deadlines. 

So I guess my question is to someone who has been out on the 

front of the implementation of policy for the effective use of it. Mr. 

Horn, a lease sale is the beginning of a long process. I am quite 

familiar from an energy point of view with off-shore leasing and 

how it works. If the polar bear is listed, and it may be—I don’t 

know what a legitimate process will bring—any actual exploration 

or development would be subject to ESA requirements. Would that 

not be true? 

Mr. HORN. That is my understanding of the law. 

Senator CRAIG. Is it also true that the lease sales you talked 

about as it relates to the polar bear were subject to the Marine 

Mammals Act, which caused a level of compliance as it related to 

habitat concern for the polar bear and the food sources of the polar 

bear? 

Mr. HORN. Absolutely. The Marine Mammal Protection Act was 

enacted in 1972 and the variety of lease sales that were conducted 

in the 1980’s and early 1990’s in Chukchi and Beaufort, all of 

course were done in compliance with MMPA and its polar bear protective provisions. 

Senator CRAIG. Now, in MMPA, Madam Chairman, I have a 

problem. My problem is endangered salmon species in the Snake 

and the Columbia system. MMPA has been so successful, and I say 

that in a positive sense, with bringing back seals and sea lions, 

that almost every salmon that now makes its way back to the Columbia and the Snake for spawning has got bite marks on it. And 

they sit right out in front of the fish ladders and consume fish in 

high quantities. And yet we have no way of managing reasonable 

numbers or rogue seals or sea lions as it relates to their phenomenal consumptive habits. 

Be that as it may, sometimes in our great drive to create, save 

and bring balance, we create imbalance. It is true now with most 

of us who look at the overall upper Pacific environment, and I do 

because I and my State are subject to some of those rules. So balance is a concern and it is important. Saving species is also important, and all of us are passionate about it. 

Ms. Siegel, you are an attorney? 

Ms. SIEGEL. That is correct. 

Senator CRAIG. Are you an advocate? 

Ms. SIEGEL. I am. 

Senator CRAIG. Are you a lobbyist? 

Ms. SIEGEL. No. 

Senator CRAIG. How can you advocate on policy and express your 

opinions about the value of policy from a professional and from 

your Center’s point of view and not be a lobbyist? Simply because 

you are not a registered lobbyist? Is that the definition by which 

you respond in saying no? 

Ms. SIEGEL. I am sorry, Senator, I don’t understand the question. 

159 

Senator CRAIG. No, you are an advocate of a point of view and 

an interest, are you not, and the policies of your organization and 

the Center from which you work? 

Ms. SIEGEL. I advocate for the protection of threatened and imperiled species and the habitats on which they depend. Yes. 

Senator CRAIG. Yes. And you do reflect the Center for Biological 

Diversity’s opinions? 

Ms. SIEGEL. Yes. 

Senator CRAIG. And you bring those opinions to Congress? 

Ms. SIEGEL. Yes. I am here testifying. 

Senator CRAIG. So you lobby in an unregistered way? 

Ms. SIEGEL. Senator, my understanding is that testifying before 

Congress is not lobbying, so I am not sure that I—— 

Senator CRAIG. Do you only testify before Congress? You never 

come to the Hill to talk privately with any United States Senator 

as an advocate for the Center for Biological Diversity? Have you 

ever been in a U.S. Senator’s office advocating for the Center? 

Ms. SIEGEL. I have talked to staff for congressional members, 

yes. 

Senator CRAIG. I am not objecting to that. We want your opinions 

and we want the Center’s opinions. I was just a bit taken by the 

Chairman’s suggesting that former Secretary Horn was a lobbyist 

or director, a former director. Lobbying is an elusive argument. You 

register, you don’t register, but you come and you advocate. Please 

continue to come and advocate and be an advocate for your interests. That is the phenomenal value of our process. A lobbyist is an 

advocate and they do represent a point of view. Let us not belittle 

or attempt to belittle that word no matter how it is applied. 

And don’t act too confused, Ms. Siegel. You are an advocate. 

Please continue to do so. I respect that and I would love your point 

of view and come by our office and visit with us. 

Ms. SIEGEL. Thank you. 

Senator CRAIG. Thank you. 

Thank you, Madam Chair. 

Senator BOXER. The reason I raised the issue is because I know 

where those two are coming from on either end. I agree with you. 

We know they are advocates for their organization, but I didn’t 

know about Mr. Horn. I had to read about it, that he represented 

these clients and that when he worked for President Reagan supported drilling in the wildlife refuge. I didn’t know that, and I just 

wanted to lay that out because I know where these two are coming 

from. I think it is out there. 

Senator CRAIG. Madam Chair, you were here during President 

Reagan’s time, as was I. 

Senator BOXER. And? 

Senator CRAIG. And we served on committees in which we engaged Mr. Horn. 

Senator BOXER. All right. I didn’t remember him. I am sorry. 

Senator CRAIG. I did. I knew him well. He did a great job for the 

President. 

Senator BOXER. Right. 

Senator CRAIG. Thank you. 

Senator BOXER. When you support off-shore oil drilling, and you 

are drilling in the Arctic, you remember your heroes. When you 

160 

fight it, you may tend to forget. The fact of the matter is, I value 

all of your testimony. I just need to know where everybody is coming from because I think it is a perspective. What I have learned 

about my life is that everybody sees the world through his or her 

own prism of experience, and that is why I think it is important. 

I want to talk about the Chukchi Sea. So Jeff, if you could move 

that out a little bit. Would you show us, if you have a pointer or 

a pen, the area of the drilling? It is the red. OK. Would you show 

us the area where 20 percent of the world’s polar bears live? 

I just want to put on the record that the Mineral Management 

Service’s own environmental impact statement for Chukchi lease 

sale said there was the probability of a large oil spill, and that 

probability was between 33 percent and 51 percent, a large oil spill. 

So being that, it is a very good chance, unless this drilling stops, 

which hopefully it will in an effort to save the polar bear, how 

would such a spill affect polar bills and their habitat, Dr. Inkley? 

Mr. INKLEY. Well, one would have to be very, very concerned 

about that. I would also point out that in addition to estimating it 

to be a 33 percent to 51 percent chance of a large oil spill, they also 

conclude that if such a spill would occur, it would have a likely significant impact on the polar bear as a result of that. 

The way that the polar bear would be impacted by such a spill 

in this particular area is that obviously they have a very thick fur. 

If they become soiled by the oil, they immediately lose the ability 

to insulate. As a result, they can go hypothermic and die. In fact, 

the studies that have been done on the exposure of polar bears to 

oil has shown that it is basically fatal, not only because of hypothermia, but also because of the ingestion of some of the oil, the 

hydrocarbons, as they are trying to clean their fur. 

Senator BOXER. Yes. 

Mr. INKLEY. So it is definite that if a polar bear is soiled by an 

oil spill, it is not going to be a polar bear much longer. 

Senator BOXER. Do you agree with that, Mr. Horn, in your old 

Fish and Wildlife protecting the species days? 

Mr. HORN. Obviously, there can be adverse impacts on bears. All 

I know is that through the years, through the cooperative management efforts at Fish and Wildlife, Alaska Department of Fish and 

Game, they have been able to manage the extensive oil and gas 

programs on the North Slope with minimal impacts on the polar 

bear populations in that part of the world. I would assume that at 

the present time, the agencies would try to continue that successful 

track record that they have had over the last 25 or 30 years. 

Senator BOXER. Yes. Mineral Management Service says there is 

a 33 percent to 51 percent chance that there would be a large oil 

spill. Ms. Siegel, do you see that as a threat to the polar bear, an 

oil spill in the Chukchi Sea? 

Ms. SIEGEL. It is an enormous threat. As Dr. Inkley described, 

polar bears that come into contact with oil will die. Polar bears are 

particularly susceptible to oil spills in this environment because 

both the bears, their prey, and the oil all tend to concentrate in the 

cracks in the ice called leads. Polar bears are also naturally curious. They will actively ingest oil if they come into the vicinity 

where there is also spilled petroleum products. 

161 

Even bears that don’t die immediately from an oil spill will be 

very susceptible even to very small trace amounts of oil, to bio-accumulation of this contaminant, and will have their reproduction, 

survival and immune systems affected, and this will suppress their 

recovery. These are statements from the Minerals Management 

Service’s own final EIS for the Chukchi lease sale 193. 

Senator BOXER. Right. I think that is the key, because regardless 

of what Mr. Horn says about how things have become better, we 

know that oil spills are a disaster. We just had one, a terrible accident in San Francisco Bay. With all the fantastic people, and I 

agree with you, Mr. Horn, we have dedicated people working, the 

Coast Guard, working as auxiliary groups, we lost thousands and 

thousands and thousands of birds. 

Even if no oil spill were to occur, how does oil and gas development affect polar bears and their habitat, Mr. Inkley? 

Mr. INKLEY. One of the concerns that one has to have as that 

area is developed is the amount of disturbance that would occur. 

We are talking about putting in a major industrial development 

here to extract that oil. Denning polar bears are of course very susceptible to disturbance because their young are not yet able to 

withstand the elements. Should a polar bear mother be disturbed 

and forced out of its den, it would not be a good situation for those 

cubs. So certainly, the whole infrastructure and activities associated with that have a potential to very much affect those polar 

bears. 

I would like to go back to your previous question, if I may, for 

just a moment. 

Senator BOXER. Sure. 

Mr. INKLEY. One of the things that we have to understand about 

the lack of any reported impacts off-shore in terms of oil and gas 

development is nearly all of the oil and gas development that has 

occurred in Alaska has been on-shore. It has been terrestrial. We 

have the Northstar off-shore operation which is in place right now, 

and that is it. So we have very little experience with which to establish a track record of off-shore oil and gas development and how 

it would impact those polar bears. We need to enact a cautionary 

principle here and be very careful about how we go forward, and 

not assume because we have no track record that everything will 

be OK. 

Senator BOXER. OK. I want to just stick with this Chukchi Sea 

because, Ms. Siegel, I couldn’t agree with you more. You said it 

way more artfully than I did in my opening statement, that there 

is a rush to drill and no rush to list. And you have to put these 

two things together. Once again, if you look at the area and you 

look where 20 percent of the world’s polar bears live, and by the 

way, one-half of the bears that are in America live in that area. So 

that is why a lot of our citizens care. 

I want you to go over once again, if they had waited, and let’s 

say there is a listing, what would have to go on before the drilling 

would be allowed to proceed? What type of studies? 

Ms. SIEGEL. Had the polar bear been listed prior to Chukchi sale 

193 taking place, the Minerals Management Service would have 

had to initiate formal Section 7 consultation with the Fish and 

Wildlife Service, and they would have had to fully analyze the imVerDate Aug 31 2005 11:13 Jul 28, 2014 Jkt 000000 PO 00000 Frm 00165 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\85525.TXT VERN
162 

pacts of the oil and gas development on the polar bear and ensure 

that the activities did not jeopardize the continued survival of the 

polar bear or adversely modify its critical habitat if critical habitat 

was designated concurrently with listing, as the law requires. 

One of the reasons we don’t believe that they could have lawfully 

come to this conclusion, and by the way, during the consultation 

process, the agencies are prohibited from taking any irreversible or 

irretrievable commitment of resources such as handing out entitlements to the oil companies, so that would have to be held in abeyance. 

One of the reasons we don’t think procedurally the Fish and 

Wildlife Service could have approved the sale at this time is that 

the Service stated in the proposed rule that they couldn’t designate 

the polar bear’s critical habitat. They found it was not determinable, and they said that they didn’t know what areas are essential to the survival and recovery of the species and which are not. 

At the same time that they claim they don’t know which areas 

are essential, we don’t believe they can lawfully sacrifice millions 

of acres of prime polar bear habitat in the Chukchi for oil and gas 

development, and affirmatively claim that these activities won’t 

jeopardize the continued existence of the species. We know that an 

oil spill would be catastrophic. 

And of course, it is not just oil spills. Seismic exploration, where 

you have ships out there putting incredibly loud noises into the 

ocean, and increasing industrial development. Minerals Management said in its own EIS that as you increase industrial development along the Alaska coastline, bear-human interactions will increase. These interactions very often result in the death of the 

bear. The MMS said even with the best mitigation measures in 

place, it is certain that some bears will be harassed or killed as a 

result of industrial activities in their habitat. 

What the Service did is instead of doing a good-faith analysis of 

the impacts, letting the scientists get to work—— 

Senator BOXER. You mean the Fish and Wildlife Service? 

Ms. SIEGEL. Yes, both agencies. Instead of letting the scientists 

get to work, do this analysis, and let us know what their scientific 

conclusions are, instead the Interior Secretary set up the situation 

where that analysis was not done because the polar bear decision 

was illegally delayed. 

Senator BOXER. Right. So again, the irony of the situation, rushing to grant the sale, and stalling on the listing. It just doesn’t pass 

the smell test to me. 

Ms. Siegel, is the Marine Mammal Protection Act and other statutes enough to conserve polar bear populations? 

Ms. SIEGEL. While the Marine Mammal Protection Act provides 

substantial legal protection to polar bears, the Endangered Species 

Act is far more reaching and far more protective, and polar bears 

desperately need the additional protections of the Endangered Species Act. 

Senator BOXER. Because of the habitat preservation? 

Ms. SIEGEL. That is correct. Under the MMPA, there is no requirement to designate critical habitat. There is no requirement to 

appoint a recovery team and prepare recovery plans specifying the 

measures necessary to remove the species from the list. And perVerDate Aug 31 2005 11:13 Jul 28, 2014 Jkt 000000 PO 00000 Frm 00166 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\85525.TXT VERN
163 

haps most importantly, there is no requirement akin to Section 7 

of the ESA that requires the agencies to affirmatively demonstrate 

that their actions will not jeopardize the continued existence of the 

species. 

Senator BOXER. Yes, that is an important point. 

Last question for you, and last question. Have other governmental agencies weighed in on whether MMS has done enough to 

ensure that the polar bear will not be harmed by the Chukchi lease 

sale? 

Ms. SIEGEL. They have. In fact, the National Marine Fisheries 

Service wrote to the Minerals Management Service twice about 

this. They wrote on April 11th, 2006 on the EIS for the 5-year drilling plan, and Chukchi sale 193 is the first lease under this plan. 

They called the proposed leasing schedule too compressed to allow 

for the necessary environmental review, particularly in the case of 

the North Aleutian Basin and the Chukchi Sea proposed sales. 

They recommended that these two areas be deleted from the leasing plan, and that the MMS instead undertake a scientific research 

program designed to obtain the data necessary to actually understand, analyze and mitigate the impact of oil and gas activities on 

species like the polar bear in the marine environment. 

They wrote to the MMS again on the environmental impact 

statement for Chukchi sale 193 and again expressed real concerns 

about the impacts of the sale, and also again reiterated the data 

to describe marine mammals within the sale area and their habitat 

use of the area are lacking. 

Senator BOXER. Let me ask you a question, and I don’t know if 

you can answer this. You may need to do more research. But as 

I sit here and I listen to you, I see an agency that has just put 

blinders on and rushed to set this lease up. If I can follow that just 

by what you said and all the facts on the record, do you think there 

is a legal case to be made to stop that sale? 

Ms. SIEGEL. We are in court challenging the sale right now under 

NEPA and Endangered Species Act claims for species other than 

the polar bear because the species is not listed. We certainly hope 

to have that sale overturned, but the outcome of any litigation is 

not certain. 

Senator BOXER. I understand. 

Ms. SIEGEL. We also believe that there is an explicit link between 

the delay and the Chukchi sale. However, the documents which we 

believe might display that link, the Administration is refusing to 

hand over under open Government laws. So we have yet another 

case in which we are suing under the Freedom of Information Act 

to obtain documents that we believe may show this. 

Senator BOXER. Thank you for telling me that, because I am 

going to weigh in on that and try to get those documents immediately. 

Ms. SIEGEL. Thank you. 

Senator BOXER. Immediately. 

Well, I just want to thank everybody. I am sorry Senator Craig 

isn’t here because I had not ever seen a report that said that the 

reason that the salmon populations are down is because they are 

getting bitten by the seals. Everything I know says the reason the 

salmon populations are down is because of damming the rivers and 

164 

mismanagement of rivers. Now, I am just saying I will keep the 

record open for a couple of days to see if we can find anything that 

confirms that, but I have not heard that. That is a new theory. 

I just want to say to all three of you that you have, really, it has 

been a very important panel. Mr. Horn, even though I was hard on 

you because I don’t agree with you, you know how that goes, I 

think you made some very important points here, the main one 

being that as we look into the future and as we attempt to wrap 

our arms around global warming, we are certainly going to need a 

more robust Fish and Wildlife Service that has a little bit of a different mission. That gives me even more of a push to explain the 

Lieberman-Warner bill to colleagues because in fact it is recognized 

in the wildlife title in that bill. We will do that. So I think that 

was a very important larger point. 

I want to say to the two of you on either side who were such passionate defenders of the bear, how important your testimony was. 

I think we have gotten some new facts here out on the record. I 

think that your case is absolutely compelling that you are making. 

I am terribly distressed at the Administration’s stonewalling this 

decision. I think it is wrong. It is unlawful. I don’t care how many 

other people did it. That has nothing to do with it. I mean, that 

is all we have to say to our kids—oh, it is OK, Billy down the 

street, you know, took illegal drugs so I guess I am not so upset 

that you tried it. No, that is wrong. 

No, we don’t sit here and say it is OK, because everybody is 

doing it. That is why society has so many problems. Right and 

wrong get lost. It is wrong. There is right and there is wrong. It 

is wrong. It is wrong that Mr. Kempthorne isn’t here. It is wrong. 

I like him, you know. That has nothing to do with it. I like Mr. 

Horn, too. But it is wrong. And once we get to a point where we 

can’t distinguish right from wrong, you know, we get in this fuzzy 

world of anything goes, you know, and that is not right. 

You only have one planet. You only have one species of polar 

bear. There it is. It is losing its habitat and 2050 is around the corner, and USGS says that is when they are really in trouble, 

clinging to their habitat. When they get oil on them, I don’t care 

how many beautiful volunteers you have, it doesn’t work with animals in the wild like this. I am not willing to say goodbye to this 

species on my watch. Maybe others are, but I am not because I 

think my kids would really be mad at me, and my grandkids. 

So we are going to do everything we can to save this species. And 

yes, it is indicative of a lot of things to come. And so although the 

polar bear may not look like the canary in the coal mine, in many 

ways they are one of the first to say, hey, look what is happening 

because of global warming. And we can’t turn away unless we don’t 

care, and I believe most of us do. 

So thank you all. It has been terrific. We will get those documents because nobody has a right to withhold documents from the 

public. It is wrong. That is another right and wrong thing. 

Thank you very much. We stand adjourned. 

[Whereupon, at 11:50 a.m. the committee was adjourned.] 

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