[Senate Hearing 110-1243]
[From the U.S. Government Publishing Office]



                                                       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



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                                 ______

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                               __________

               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED TENTH CONGRESS
                             FIRST SESSION

                  BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana                  JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut     JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
HILLARY RODHAM CLINTON, New York     JOHNNY ISAKSON, Georgia
FRANK R. LAUTENBERG, New Jersey      DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland         JOHN BARRASSO, Wyoming
BERNARD SANDERS, Vermont             LARRY E. CRAIG, Idaho
AMY KLOBUCHAR, Minnesota             LAMAR ALEXANDER, Tennessee
SHELDON WHITEHOUSE, Rhode Island     CHRISTOPHER S. BOND, Missouri

       Bettina Poirier, Majority Staff Director and Chief Counsel
                Andrew Wheeler, Minority Staff Director


                            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


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 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 
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. 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.
    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 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.
    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 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:

    ``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 court-ordered 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 
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 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:]

    [GRAPHIC] [TIFF OMITTED] T5525.240
    
    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 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.

  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 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 cap-and-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 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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        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\
---------------------------------------------------------------------------
    \1\Stirling, 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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \2\Regehr, 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).
    \3\The University Corporation for Atmospheric Research, Abrupt Ice 
Retreat Could Produce Ice-Free 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.
    \4\USGS 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.

    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 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.
    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 litigation-driven 
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.
    [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 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 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 buy-out 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
---------------------------------------------------------------------------
    \1\The 95 percent Confidence Interval is 27-54 percent chance of a 
major oil spill.
---------------------------------------------------------------------------
    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.
    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 no-jeopardy 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.
    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. 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?
    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 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, two-thirds 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?
    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.
    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 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, 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 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 emissions-related 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 things as well, such as oil and gas 
development, oil spills, over-hunting 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.
    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 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 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.
    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 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.
    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 impacts 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 perhaps 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 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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