Government Affairs Result: ESA Rule will not be used to regulate climate change

When the federal government officially listed polar bears as a threatened species under the Endangered Species Act (ESA) in 2008, environmental groups sought to compel the state of California to place restrictions on residential development due to the presumed effects of climate change on polar sea ice.

Concerned that the Fish and Wildlife Service (FWS) might overstep its bounds in this way, NAHB urged FWS to proceed cautiously in developing rules for protecting polar bears and to "properly limit the scope" of its listing to that which is conferred by the governing statute. This week, our efforts proved successful when the FWS re-issued a final special rule for managing the polar bear that does NOT employ the ESA to regulate greenhouse gas emissions. Rather, the rule specifically states that activities outside the bear's range are not subject to ESA "incidental take" prohibitions.

This issue has far-reaching ramifications because of the potential for expansion of ESA regulatory authority to include activities related to global warming -- no matter how distant those activities may be from the location of the endangered species in question. Moreover, in view of the President's comments in his latest State of the Union address in which he promised to pursue actions to limit greenhouse gas emissions, this latest decision to stay the course on a Bush-era policy that the ESA is not the appropriate federal regulatory tool for accomplishing that goal is a truly welcome development for NAHB members. Read NAHB's official comments here