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Global warming a threat to polar bears? Judge orders review of US rule.

A judge rules that the US has met its obligations for protecting polar bears, but ordered a review of a special rule that excludes greenhouse gases from the list of threats to the bears.

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"The court is sensitive to the plaintiff's arguments for a strong mechanism to combat the effects of global climate change," Judge Sullivan wrote. But, he continued, the Interior Department argued that the Endangered Species Act was the wrong tool for protecting polar bears from the effects of global warming, "and the plaintiffs offered no compelling evidence to the contrary."

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From the judge's perspective, the environmental groups did score a direct hit when they argued that the Interior Department failed to produce an environmental assessment for the special rule governing polar bears – an assessment required by the National Environmental Policy Act. Sullivan returned the rule to "interim" status and ordered the Interior Department to conduct an environmental assessment.

Both sides are due back in court by Nov. 17 to agree on a schedule the US Fish and Wildlife Service, which administers the ESA, will follow to conduct the assessment, notes Jason Rylander, senior staff attorney for Defenders of Wildlife in Washington, one of four environmental groups bringing the suit.

Some say they hope that the Obama administration will come to see why the ESA should be enlisted to deal with the climate threats to polar bear habitat.

The White House "always has the option of modifying [the special rule] or walking away from it in light of this new analysis," says Andrew Wetzler, director of the Natural Resources Defense Council's lands and wildlife program. The NRDC was one of the plaintiffs.

In the end, he says, the case places a spotlight on two attitudes toward greenhouse gases that could shape potential regulations.

If one considers global-warming pollution to be on a par with other forms of pollution, he says, then it's fair game to expect agencies that regulate other pollutants to regulate greenhouse gases, too.

If one considers greenhouse gases as unique forms of pollution, "then the answer is quite different," he says.

For now, as the question applies to the ESA, the answer seems to be: They are unique.

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