There is a dirt road on the scalding edge of California’s Joshua Tree National Park, where the Mojave and Colorado deserts merge in magnificent desolation, and a forbidding preview awaits of what global warming has in store for the rest of the country if it goes unchecked. The road leads to a low-slung house set in a parched terrain of scrub and foothills, the sky bleached white by the sun, solar panels on the roof, and a hybrid in the driveway.
It is a stark, lonely, and beautiful place, and it may well be the nation’s most important front in the battle against climate change, though not because it is a carbon-neutral homestead worthy of imitation nationwide. It is also the place where a White House that never backs down got its comeuppance, where a strategy was devised that forced George Bush to admit global warming was happening, where plans are taking shape that could move the country from lip service to action on the most pressing environmental crisis humanity has yet faced.
It is a house where the polar bear is king.
In the polar bear—iconic, charismatic, beloved—the Center for Biological Diversity finally found its poster child, its symbol, the species that got Americans to emerge from their apathy and demand a solution to the greenhouse gases that are heating the globe and melting the polar ice packs. The deadly chain reaction endangering the polar bear is also threatening the future of civilization and humanity, but it was the ferocious and beautiful polar bear that finally seemed to get many people aroused about climate change, while putting the center on every network and front page in the country. The center is determined to use the polar bear to transform the Endangered Species Act into a vehicle for battling climate change. It is a strategy that has enraged the center’s critics, flummoxed the White House, and left the global warming deniers in Washington sputtering, as they point out that the act was never intended to be used this way, that the center is engaging in a naked attempt to impose government policy by litigation instead of legislation, and that it’s just plain crazy to try to set global warming policy by means of a bear. But the craziest aspect of the center’s polar bear project is this: It just might work. If the letter of the law is followed—a big if, given the immense stakes, the powerful forces aligned against the center, and the public’s longstanding inertia on global warming—the center wins. If Congress and the president simply obey the law, the polar bear will be protected. And the only way to protect the polar bear is to take on global warming.
“Our hair is on fire on this issue,” says Kassie Siegel, whose house in Joshua Tree serves as headquarters for the center’s Climate, Air, and Energy Program. One of the new generation of leaders at the center, she has been called three times since 2005 to testify before Congress on global warming, and she has been quoted in more than 1,000 news articles and broadcasts since starting the polar bear project. Her impact on national climate law and policy and her growing national clout have made her a force for change, the center’s new eco baron. But she says there is no time or cause to celebrate her rise from obscurity. “The polar bear is running out of time. We are running out of time. This is our shot.”
Kassie Siegel lives and works in her desert outpost with the attorney Brendan Cummings, head of the center’s oceans program, her partner in law and life. They have offices at the two ends of their home and live in the middle, where picture windows look out on a veritable crossroads for wildlife—bobcats, quail, roadrunners, and owls. Midday exercise requires no stair-steppers or treadmills—just a hike through the desert that abuts their back door. Then they go back to work, back to the legal briefs, the constant correspondence, the phone calls to the tight-knit community of climate litigators that they help lead, the endless federal Freedom of Information Act requests, their main weapon for uncovering the government’s violation of environmental laws. They have boxes of documents painstakingly assembled—some of the requests take years to fight—a treasure trove of climate hope and perfidy dating back to the fateful, pivotal, disastrous moment when Ronald Reagan ripped Jimmy Carter’s solar panels off the White House roof and killed plans for the United States’ energy independence—the moment, Siegel suggests, when the path to global warming moved from possible to inevitable, the worst of the Reagan Revolution’s unintended consequences. Those files have produced one revelation after another, such as the extensive war plans the Pentagon drew up for a warmer world with melted polar icecaps, flooded coastlines, and extensive areas of drought—a world the military strategists believed was coming, even as their commander in chief at the time, George Bush, publicly denied any such future awaited. One Pentagon report they found predicts an approaching age of regional wars over vanishing energy, water, and food if global warming remains unchecked; the report is titled “Imagining the Unthinkable.” When it came to the military dealing with global warming in the Bush years, there was no denial, no suppression of science, and no expense spared—the only branch of the government for which that was true.
This is deeply depressing to Siegel. Her nightmarish vision: picking up a history book twenty or thirty years from now and reading that the United States, revered as the world’s savior during World War II, is to blame for destroying the world as we know it. Future historians will be baffled and our descendants outraged, she fears, because it will be clear that American scientists understood the problem better than any others in the world and had the technology to deal with it through renewable energy and sensible growth, yet the nation lacked the will to see it done. With 5 percent of the world population sucking up a quarter of the world’s energy and emitting a quarter of the world’s greenhouse gases (which amounts to twenty metric tons a year of carbon dioxide for every living American man, woman, and child), America bears the brunt of responsibility for global warming. Politicians do not like to say this, but it is irrefutably true. “We are rapidly reaching the point of no return on climate change,” Siegel laments. “Rome is burning, and they are fiddling…. So, yes, this consumes me. It’s what I eat, sleep, and breathe. Because we’ve got to change course, and we’ve got to do it now.”
So in that house in Joshua Tree, life revolves around work. Five more years, tops, and it will be too late to avoid disaster, Siegel believes. Even in her spare time, she remains obsessed with altering the global warming trajectory, serving as one of a thousand volunteers in the Climate Project, presenting Al Gore’s slide show from An Inconvenient Truth to community groups in some of Southern California’s most conservative, least receptive enclaves. Her disarming, easygoing style and her encyclopedic knowledge of climate science and law win over a surprising number of converts. One real estate attorney in San Diego was so impressed by her presentation that he arranged for her to speak to a group of developers, normally the last people on earth who want to be lectured about global warming.
Like many of the staffers at the center, she and Cummings describe their work as a sixteen-hour-a-day dream job. The ponytailed Cummings worked as an activist aboard an anti-whaling vessel before he showed up one day at the center’s headquarters, where he initially worked for no pay and made himself indispensable, focusing with great success on stopping fishing fleets from laying waste to sea turtles and other imperiled marine life. Siegel worked as a raft guide in Alaska before earning her law degree and coming to the center. She won her first case in typical, frustrating fashion: In 2001, she represented the center and a group of other environmental organizations in forcing the government to acknowledge that an Alaskan diving seabird, Kittlitz’s murrelet, was endangered—only to have it placed on the warranted but precluded waiting list, where it remained eight years later, its numbers dwindling.
Partly because of their frustration over such hollow victories, Siegel and Cummings devised a strategy for using the Endangered Species Act to take on the big environmental battle of the day, global warming, then sold Kieran Suckling and Peter Galvin on the idea. At first the center’s cofounders were skeptical, but the attorneys laid out their idea with irresistible logic: There is no greater threat to animal species worldwide than climate change. Like the dinosaurs 65 million years ago, most creatures will not be able to adapt to a rapidly changing climate. Warming oceans will kill coral, krill, and other creatures that are vital parts of the marine ecosystem and food chain; this effect will in turn drive larger fish, seabirds, and mammals toward extinction. Melting ice packs will be among the first visible sign, destroying arctic habitats while also causing flooding elsewhere as sea levels rise, destroying many of the habitats that the center had so painstakingly fought to preserve. The same destruction of food chains and habitats will eventually occur on dry land as well, as weather patterns are altered and deserts march into temperate zones. Species already recognized as threatened will be even more vulnerable. Their strategy would be to carefully choose the right species, one for which climate change is a very clear threat, instead of the more typical dangers—logging, construction, and pollution—found in most other endangered-species cases. Then everything else would fall into place: the mandates of the Endangered Species Act would compel the government to act against climate change.
As Siegel and Cummings saw it, the broad language of the Endangered Species Act did not limit the nature of the threat—the act had been written to be adaptable to a changing world, so it could respond as new threats emerged. The hard part, they said, would be the recovery plan. The prescription for the spotted owl was simple: this owl was dying out because its forest habitats were being logged. Prescription: stop cutting down the trees it needs to live. Global warming was different. It is global. There is no single logging operation, shopping mall construction project, housing development, or power plant emission that could be halted to save dying coral reefs from global warming. It’s not as if the United States could suddenly stop pumping out 25 percent of the world’s greenhouse gases just because the polar bear was placed on the endangered species list. That was a potential foil to their strategy: the what next? question. Opponents would undoubtedly raise that question trying to beat back the center.
But Siegel had a simple answer, an elegant solution that could have real impact on climate change, and that would simply rely on a process already in place: Section 7 of the Endangered Species Act, the consultation requirement that Suckling and Galvin used in their original spotted owl case. This section of the Endangered Species Act requires federal agencies to consult with the U.S. Fish and Wildlife Service whenever they are taking actions that could harm the protected habitats of animals on the endangered list. It is one of the act’s most powerful and commonsensical provisions, because its purpose was to put all federal agencies on the same page instead of working at cross-purposes. The Transportation Department, for example, has to consult with fish and wildlife on highway projects in order to avoid building roads through protected habitats and crushing the endangered species living in them. The provision would work the same way for a species listed as endangered because of global warming: If the Energy Department was considering issuing a permit for a new power plant, under Section 7 it would have to consider requiring the owner to employ carbon-neutral means of electricity generation—solar, geothermal, nuclear, hydroelectric, or other clean technologies—instead of building yet another dirty coal plant that would spew millions of tons of greenhouse gases into the atmosphere, thereby contributing to global warming. Likewise, when the federal government purchases vehicles for its immense transportation fleet, whether postal service trucks or VIP sedans, or when it sets fuel efficiency standards for any car made or sold in America, it would have to favor electric cars and hybrids because of their much smaller carbon footprints. In short, as Siegel explained it, succeeding in listing a species endangered by global warming would compel the entire federal government and its panoply of projects, purchases, and permits to choose options that contribute the least to global warming and the extinctions it causes (and has already caused). This approach, which amounts to energy efficiency, conservation, and sustainability as national policy, ought to have been the way government operated for the past thirty years—there might not be any global warming if it had been and if other nations followed America’s lead. But in the real world, it never seemed to happen without a legal mandate and a court order. Congress was too paralyzed and partisan to do it through legislation—even the most timid attempts at laws related to climate change had failed. No president has been willing to do it (though Jimmy Carter came close, and Barack Obama has promised more). But the Endangered Species Act could be the vehicle for that mandate, the attorneys believed.
Suckling and Galvin thought the plan was brilliant. It would shift the emphasis of the center toward the most pressing environmental challenge and threat of our time, they decided, yet still maintain the core mission of protecting biodiversity. As Cummings observed, what good is saving beautiful habitats if they end up under twenty feet of water? The only question, then, was what species to put at the center of what they hoped would be a landmark case. An earlier attempt—Cummings’s successful listing of two types of coral, the organisms most visibly affected by global warming as rising ocean temperatures bleach and kill them—captured no one’s attention or imagination. This is a constant problem for those working to save endangered species: Most of the creatures are not what you would call appealing or even moderately attractive. The center faces a continual battle for attention, public interest, and goodwill, and this is very challenging with many endangered species—imperiled insects, slugs, and unsexy, weedy plants. The threatened milk vetch is one of Suckling’s favorites, but he may be the only person on the planet who gets sentimental about something called a vetch. These are species that are critical to the health of whole ecosystems and food chains; they can be repositories for important compounds, cures, and scientific discoveries (research on the milk vetch may aid in combating cancer and the effects of aging); and, from a moral or philosophical perspective, they are just as worthy of being saved and treasured as any other living species. But they are not lovable. It is all too easy—all too human—to focus on the downside of their protection: the fishermen who lose their livelihood when turtles are rescued from extinction; the off-roaders and hunters who are barred from their favorite haunts because of some burrowing rat or bristly shrub; the cattlemen who lose grazing permits and livelihoods, the local communities that may forfeit jobs, growth, and tax revenue when building projects are delayed, reduced, or blocked to save a toad that no one else but the center cares about. But this situation shifted when Siegel seized on Ursus maritimus, the world’s largest bear, a ferocious yet beloved predator. The polar bear became the center’s rock star.
Siegel formally petitioned to put the polar bear on the endangered list in February 2005. Her filing included extensive scientific documentation of the rapid melting of the arctic ice pack, without which the polar bear cannot survive, and evidence of bears starving and drowning as their habitat literally shrank beneath their paws. The petition was bolstered by a report from one of the most respected scientific organizations in the country, the U.S. Geological Survey, which estimated that two-thirds of the polar bear population of 25,000 animals1 would perish by 2050, and that the species would go extinct before the end of the century because of global warming.
The Endangered Species Act has an inflexible series of deadlines; it requires (not suggests, not recommends, but requires) an initial finding by the U.S. Fish and Wildlife Service within ninety days. In this case, the government had ninety days to express a position on whether or not the polar bear was endangered—a finding that is purely scientific, or at least is supposed to be. If the initial determination is that a species is in jeopardy, this announcement must be followed by a proposed federal rule for listing the species as threatened (for long-term threats to survival) or endangered (for more imminent threats of extinction), which must be made public within one year after the petition is filed. And one year after that, after public comments are considered and a full scientific evaluation is completed, a final listing determination must be published and protection of the species must begin, along with preservation of its habitat and plans for its recovery. Two years, start to finish, are the absolute maximum the process is allowed to take before protections begin—there is no flexibility (except for the “warranted but precluded” loophole that the administration had been exploiting).
The first ninety-day deadline came and went after the filing of the polar bear petition, and the fish and wildlife service did nothing. This has been standard operating procedure since Bush entered the White House. From that moment on, the administration remained in constant violation of the law. After ten months, the center finally sued, and was joined by two other environmental organizations—the Natural Resources Defense Council and Greenpeace—which were partners of the center throughout the polar bear case. Then the center began a media blitz, with Siegel cast in the starring role. Her youthful face, her mane of long brown hair prematurely streaked with gray, and her tone of quiet, earnest outrage became a staple in the media whenever polar bears or global warming made the news—along with graphic, alarming satellite images of retreating arctic ice and heartrending photographs of emaciated, starving polar bears. The public response to the center’s petition—and to the administration’s foot-dragging on protecting the polar bear—broke all records. More than 680,000 Americans filed comments with the fish and wildlife service on the need to protect the polar bear.
The government had no choice but to admit it was in violation of the Endangered Species Act’s deadlines—it had no defense and made no apology—and settled the lawsuit by agreeing to speed things up. Finally, one year after the petition was filed—nine months late—the U.S. Fish and Wildlife Service made an initial determination that the polar bear deserved to be listed as “threatened.” By then, the year-long deadline for step two in the process, issuing a proposed rule, was only one week away. The center and the other environmental groups agreed to extend the deadline from February 2006 to December 27, 2006, as part of settling their suit, reluctantly rewarding the government for breaking the law.
Secretary of the Interior Dirk Kempthorne called a press conference on the day of this next deadline to announce that he agreed with the Center for Biological Diversity: The polar bear was threatened. Kempthorne didn’t quite make the court-ordered deadline, as the actual listing proposal wasn’t published for another two weeks. Even belatedly, however, this proposed listing represented a breakthrough: The Bush administration had conceded that the arctic sea ice was melting, destroying the polar bear’s habitat—a first-ever admission by a member of Bush’s cabinet that global warming was damaging a species and the environment.
But as she pored over the listing documents, Siegel soon saw the White House was continuing to play games: The proposed listing stated that the threat to the polar bear and the cause of its habitat loss could be neither identified nor regulated. Global warming, according to Kempthorne, was “beyond the scope” of the Endangered Species Act, as well as beyond the abilities of the fish and wildlife service, and so could not be included in the polar bear listing. “We don’t have the expertise…to make those kinds of analyses.” And so, he said, no such analysis was made.
None of the assertions Kempthorne made were true. Once again, the administration had resorted to suppression of science to alter the outcome of an endangered-species case. Siegel obtained the original report prepared by the scientists at the fish and wildlife service who had studied the polar bear, and found they had written an entire section in their report on how the federal government could protect the polar bear’s habitat and stave off its extinction, a section headed, “Mechanisms to Regulate Climate Change.” But Kempthorne censored that section and replaced it with a new one: “Mechanisms to Regulate Sea Ice Recession.” Instead of the specific strategies for dealing with greenhouse gases and climate change that the scientists called for, Kempthorne’s rewrite simply said there were no available methods to regulate the melting of sea ice. That was it. This was technically true but utterly misleading; only the cause of the melting—greenhouse gas emissions from cars, factories, and other human activities—can be regulated.
Protecting what is left of the bear’s vanishing habitat was absolutely essential, Siegel had argued in her court filings, but Kempthorne offered a reason why there could be no such habitat protections for the polar bear: The Arctic was melting too fast and changing too much to be mapped accurately, much less protected. In other words, Siegel realized, the government might be compelled to list the polar bear as threatened, but Kempthorne seemed intent on doing everything possible to make the listing meaningless.
The government had a year—until January 9, 2008—to publish a final listing, at which time the polar bear would be entitled to full protection under the Endangered Species Act. That gave the center a year to increase public and congressional pressure for meaningful protections. Meanwhile, the polar bear’s plight grew progressively worse. Researchers using satellite mapping discovered that during the summer of 2007 there was a record amount of sea ice melting in the arctic—1 million square miles of ice vanished. Projections that the polar bear’s habitat could be largely gone by 2050 were revised—now it was looking as if this could happen by 2020, and that the rest of the world would not fare much better. As a climate scientist at NASA, Jay Zwally, put it, “The Arctic is often cited as the canary in the coal mine for climate warming. The canary has died. It is time to start getting out of the coal mines.”
Polar bears, however, cannot leave their “coal mine”—evolution has left them supremely adapted to life on the ice pack, where they are efficient hunters, preying largely on seals and other marine life. But off the ice, they cannot hunt, mate, or shelter their young. They starve and die.
The January 2008 deadline arrived and passed with no listing emerging from the fish and wildlife service. The arctic was in an unprecedented meltdown, but the administration again broke the law, offering no excuses and no apology. Kassie Siegel had an explanation, and a week after the deadline expired, she had a national platform from which to offer it when she was called to testify before the House Select Committee on Energy Independence and Global Warming: The administration, she said, had delayed the listing so it could auction off huge leases for oil and gas drilling by major oil and energy companies along the Alaskan coast—in the polar bear’s prime habitats. The auctions were scheduled for February. Because the center would offer evidence that the leases would pose a major potential threat to polar bears, they could never have been auctioned if the administration had listed the polar bear on time, Siegel testified. The department’s own documents suggested a 50 percent chance that during the course of the leases there would be large oil spills that would devastate wildlife. “The Department of the Interior has illegally delayed protection of the polar bear at every turn and is now poised to auction off some of the species’ most important habitat in the United States to the highest oil company bidder.”
She was more blunt with reporters after the hearing: “Short of sending Dick Cheney to Alaska to personally club baby polar bears to death, there’s not too much that the administration can do that is worse for polar bears than oil and gas development in their habitat.”
Siegel sued again because of the delay, but it took until April to get a federal court to order the Bush administration to obey the law and issue a listing for the polar bear. The court gave the administration another month to issue it, and Siegel was called back to Capitol Hill again, this time before the U.S. Senate Committee on Environment and Public Works. By then the oil leases had been auctioned. “Polar bears are poised to become one of global warming’s first victims,” she testified, her slides of stranded, emaciated polar bears projected behind her. “The only thing keeping pace with the rapid melting of the sea ice is the breakneck speed with which the Department of the Interior is authorizing oil and gas development.”2
One day before the court-imposed deadline, Dirk Kempthorne called another press conference to announce a final rule designating the polar bear as threatened because of global warming. It was a historic decision, humbling for the White House, which had fought this moment with all its considerable resources, and a huge victory for the Center for Biological Diversity. The polar bear would be protected, and the government had been compelled to admit that global warming was the problem. No matter how the administration tried to spin it, minimize it, or interfere with the protections for the polar bear, the listing gave the center and other conservation organizations a vast legal arsenal to use in court to force meaningful, perhaps sweeping, environmental reforms. Siegel knew that the listing was just a step in a very long process—but it was a huge step.
Kempthorne made it clear that he hated every minute of all this, and that he was making the announcement only because the law (or, more precisely, the center) compelled him to do so. He spent most of his press conference criticizing the Endangered Species Act for forcing his hand and for being too “inflexible.” As Siegel expected, he rejected and mocked the idea of using the act to battle climate change, even though he and his department had reluctantly agreed that global warming would drive polar bears—as well as many penguins, seals, and other arctic and antarctic species—to extinction. He repeatedly lamented that the law barred him from considering “economic conditions” when deciding if the polar bear, or any species, is endangered. This was at best a bizarre criticism, because the entire rationale for the act was that before its adoption, deference to economic conditions had driven one species after another, such as sea turtles and bald eagles, to the brink of extinction.
Kempthorne had decided to build his own brand of flexibility into the polar bear listing, and he explained how he would hobble it from the outset by ordering that no new protections be offered beyond those already in place under the weaker Marine Mammal Protection Act—which he falsely characterized as stricter than the Endangered Species Act.3 He vowed the listing would require no limits on oil and gas drilling in bear habitats, and that he would bar the listing from being “misused” to regulate greenhouse gases or to create “backdoor climate policy.”4 His position sounded reasonable to some people, but ultimately makes no sense legally, scientifically, or ethically. He had decided as a matter of law and science that global warming was killing polar bears, triggering a listing under the Endangered Species Act. Once an animal is listed, the act requires—not suggests, not recommends, but requires—the government to reduce the threat to polar bears, which means reducing global warming. Kempthorne simply did not have the legal authority to refuse to do his job. To do so was to make being an outlaw the official position of the Bush administration.5
In Joshua Tree, Kassie Siegel listened to a live Web broadcast of Kempthorne’s press conference, savoring the bittersweet victory, if only briefly. When Kempthorne was done, Siegel helped draft a press release describing the listing as a “watershed event,” and deriding the administration’s position that the listing would change nothing. Then she sketched out the next lawsuit for the polar bear, one that would seek to make sure the listing means something big, even as the Bush administration began drafting new regulations to gut the Endangered Species Act and undermine Siegel’s legal argument for strong polar bear protections. And then she turned her attention to the center’s other big global warming case.
Tejon Ranch, one of the largest wild areas left in California and one of the twenty-five most important pockets of surviving biodiversity in the world—and the proposed location for one of the largest real estate developments in the nation—was back in the news. And the news, from the center’s point of view, was not very good. A coalition of six environmental groups fighting the development had just splintered. Five of the groups, including the Sierra Club and the Audubon Society, had decided to accept the development after all, in exchange for the conservation of a substantial portion of the wilderness at Tejon—a deal that was being celebrated in the press and toasted by the governor. Only one of the groups attacked the compromise as a bad idea and vowed to fight on: the Center for Biological Diversity.
“This wilderness area is iconic,” Siegel says. “It’s California’s heritage. There’s no reason to put a new city there.”
Tejón is Spanish for badger, a creature once plentiful near the ranch; legend holds that the first Spanish soldiers in the area, searching for deserters, found a dead badger at the mouth of a canyon instead, and the name stuck. The land had long been coveted for its fertility, beauty, and strategic location. It was occupied by the Yukuts and several other nations of Native Americans; was claimed by Mexico in the nineteenth century and carved up into four land-grant rancheros; then finally became U.S. terrain after the Mexican War and California’s admission to the union. Fort Tejon was established in 1854 by a storied California military man, explorer, road builder, and land baron, Edward Fitzgerald Beale. His many firsts included surveying for the transcontinental railroad, bringing news to Washington that gold had been discovered in California, and establishing an experimental U.S. Army Camel Corps on the ranch, with twenty-five of the desert animals imported from Egypt and Tunisia. Beale used his presidential appointments as head of the Bureau of Indian Affairs, Surveyor General of California and Nevada, and chief Indian negotiator for the U.S. Army to sequester the local tribes on reservations, then snap up the four rancheros at a fraction of their value to form the present-day boundaries of Tejon Ranch. He even bought some of the camels from the government when the brass decided they were not U.S. Cavalry material; he kept them on the ranch for years and is said to have used them to pull a surrey into town from time to time.
The Beale family owned the vast ranch for fifty-seven years. Edward’s son, Truxtun Beale, sold it for $3 million in 1912 to a consortium of investors led by Harry Chandler, publisher of the Los Angeles Times and owner of the largest real estate empire in America at the time. The Chandler family’s Times-Mirror Company converted the Tejon Ranch Company into a publicly traded corporation on the American Stock Exchange in the 1970s, then saw its stock prices quadruple to more than $400 a share in the early 1980s when the company first announced plans for massive development on the property. Drought, a bad economy, and a real estate downturn later stymied those plans and tanked the stock, and in the late 1980s and early 1990s the ranch owners positioned themselves as stewards of the land who were so wealthy they didn’t have to worry about developing the property to make money. The owners were in it for the “long haul,” the company president said at the time. In keeping with that philosophy, biologists from the U.S. Fish and Wildlife Service and the National Audubon Society were given frequent access to the ranch for research and wildlife management as part of the California condor recovery program, one of the most ambitious and successful programs ever attempted for staving off a species extinction. The last twenty-two condors in the wild were captured in 1987, bred in captivity, then “re-wilded” beginning in 1991—an expensive and painstakingly slow process that is still going on. By 2008, 146 condors were living free in California and Arizona. The company issued environmental reports in the early 1980s that recognized the importance of Tejon Ranch to the condors and the adverse impact that altering the landscape could have on them.
But a few years later, after Times-Mirrror sold its controlling interest in the ranch to several investor groups, a new management took over, and soon development was back on the table, bigger than ever, as the planning began for the current real estate proposal—a new city, a resort, golf courses, businesses, and industry in the midst of a pastoral ranch and sprawling wildlands. Cooperation with the condor recovery program was curtailed, and Tejon Ranch Company sued the government to keep the giant vultures from being re-wilded in their historic range near the ranch. The company sued again in 1996, demanding that the protections be lifted and that the nearly extinct condors be designated “experimental nonessential,” a designation that would probably doom the species. The company then reached an agreement with the fish and wildlife service to put the lawsuit on hold if the federal government would give it permits to destroy condor habitat and even kill the birds during construction—an agreement the feds made even though it appears to violate state laws that provide absolute protection of the condors.
Siegel and the Center for Biological Diversity fought construction of an earlier industrial trucking and warehouse complex at the edge of Tejon Ranch abutting an already busy freeway, delaying the project for five years but ultimately losing the case. In 2005, when the housing and resort plans were announced, the center joined with a coalition of environmental groups and local activists to oppose the project and to propose taking further development off the table in favor of making Tejon Ranch a national or state park. In addition to the nearly extinct California condor, an estimated twenty other species protected by state and federal laws live at the ranch, as do another sixty rare types of plants and animals with no legal protections. Some of these creatures live nowhere else in the world. One-third of the oak tree species in California, including some of the oldest and largest oaks in the state, live on the ranch. This abundance and variety of life are why the region Tejon Ranch dominates, the California Floristic Province, is designated by the United Nations as a biological diversity hot spot—containing the last wildlife corridor linking the coastal, desert, and mountain regions of the state. Portions of the ranch have been designated as condor “critical habitat” under the Endangered Species Act, areas deemed vital to the species’ continued survival. Yet the proposals for developing Tejon Ranch have called for building in the critical habitat and the ranch has sought a federal permit that allows condors to be disturbed, harassed, and even killed. This is euphemistically called an “incidental take permit.” No presidential administration has issued more such endangered species take permits than President Bush’s, with a long list that even includes blanket permissions to the oil industry allowing the killing of polar bears. A group of eleven condor experts who worked on the species recovery project oppose the development plan because of the threat it poses to condor species survival, but their input was not included as building plans were laid.
The Tejon project is not merely a disaster for endangered species, Siegel argues, but also exactly the sort of development that must stop if there is to be any hope of reversing disastrous climate change. Planting a city and a resort in the middle of an irreplaceable wilderness, with long commutes in every direction, during a climatic catastrophe and deep uncertainty over energy costs and supplies, is sheer madness, she says.
Fighting such “leapfrog” development—new housing projects that are unconnected to existing towns and cities, and therefore have a much greater carbon footprint—is one of the new priorities for the center. And although California under Governor Arnold Schwarzenegger has led the nation in adopting new global warming legislation, a much older state law on the books, dating back to 1970 and signed by none other than Governor Ronald Reagan, has become the center’s weapon of choice against greenhouse gas emissions and the urban sprawl that helps generate them. The law signed by Reagan, the California Environmental Quality Act, included the deceptively simple but sweeping requirement that local and state governments must examine and reduce or eliminate the negative environmental impacts of new development projects—from new cities to new shopping malls—before approving them. The goal was to address traditional water and air pollution—the mucking up of rivers and the smokestack smog and soot that were the bane and the primary environmental concern of the 1970s. Global warming and greenhouse gases were not on anyone’s radar then and are not specifically mentioned in the act, but like the sweeping federal environmental laws that came a few years later, the language was designed to be inclusive of new environmental threats as they emerged, making them broad enough to address the greenhouse gas emissions of development projects and their impact on global warming. In practice, no one ever thought to apply the law in this way, until the center tried it out in 2006, in the first such lawsuit in the country.
In what Siegel promised would be the first of many such cases, the center went to court to stop a controversial leapfrog development called Black Bench, which would put nearly 1,500 homes in a wild desert area outside the city of Banning at the foot of the San Bernardino Mountains. The center accused the city of Banning, which had approved the remote Black Bench development, of failing to consider the increased greenhouse gas emissions it would cause, in violation of the California Environmental Quality Act. Citing wildfires, drought, and energy shortages as the initial consequences of global warming in California, Siegel argued that the city had two basic choices: cancel the development, or alter it to minimize greenhouse gas emissions by building in superefficient appliances, energy-efficient construction, passive and active solar energy systems, and requirements that the city be served by clean public transportation or that residents use zero-emission vehicles. Local and state governments ought to discourage “leapfrog” developments such as Black Bench that are located far from existing city neighborhoods and infrastructure, she argued, and favor development that is contiguous with existing urban areas. Keeping wilderness areas intact and concentrating development aids in the battle against global warming, whereas sprawl contributes to the problem because of longer commuting distances and the higher energy, water, and wastewater demands. The judge hearing the case agreed that the city had failed to properly consider the development’s impact on the environment and overturned the city’s approval of the project.
The center’s strategy against Black Bench was so successful that the former governor and current state attorney general, Jerry Brown, immediately filed a similar suit against the entire fast-growing county of San Bernardino, forcing a settlement requiring the county to consider greenhouse gas emissions in every future development and construction project. Under threat of more suits from the center and the state, almost every other major jurisdiction in California is now doing the same—a sea change in how developers in California are required to handle the threat of global warming. Workshops began convening statewide to train city and county officials to “green” their urban planning, shorten commutes, and build in cleaner transit. Stopping a 1,500-home project like Black Bench will have no measurable effect on global warming, Siegel says, but how about ten such projects? Or a hundred? Or the multiple huge developments proposed for Tejon Ranch? No one project will make or break climate change—just as no one clean electric, hybrid, or hydrogen car will. It is the cumulative effect of millions of clean cars—or millions of houses—that can alter the path of global warming. “We have to start somewhere,” is Siegel’s litany.
On the other side of the issue, those who own Tejon Ranch, who have invested in the vision of a new city and resort complex set amid windswept hills and oak groves, see this as a simple question of property rights. They own the landscape. They are entitled to profit from that ownership. They say they have bent over backward to set aside significant land for a nature preserve and open space in their plans. They have invited outside environmental groups to oversee the conserved lands. What more must they do to satisfy the center? Most of the Tejon Ranch project is to be in semirural Kern County, where the county seat is rapidly growing Bakersfield, and civic leaders there have complained that the Center for Biological Diversity is going too far, and should not try to block development that promises jobs and revenue for the region. A columnist for the Bakersfield Californian, Marylee Shrider—in an article prominently reprinted on the Tejon Company’s Web site—summed up these sentiments, deriding the center’s “saber rattling” and “unwarranted sense of entitlement” as unwelcome environmental extremism. “They want, they want, they want,” Shrider wrote of the center. “…Tejon Ranch Co. must develop, or not develop, the land according to their plan or it’s off to court they’ll go.”
Early on, and despite its uncompromising reputation, the center had participated in discussions with the Tejon Ranch Company, joined by the Sierra Club, Audubon California, the Natural Resources Defense Council, the Planning and Conservation League, and the Endangered Habitats League. At the time, the Tejon Company had offered to place 100,000 acres of the 270,000-acre ranch in a conservation trust if the environmental groups would drop their opposition, but Peter Galvin, who personally represented the center in the negotiations, pronounced that insufficient. Much of the 100,000 acres was rocky, difficult high ground with little value for conservation and unusable for development—the ranch was giving up nothing, he said. But Galvin proposed an alternative.
The factions had gathered in the back room of a posh Italian restaurant in Pasadena—neutral territory, no one’s turf. On one side of the big table sat ranch executives with the weathered, wise look of very prosperous cowboys, buoyed by their tablemates—their corporate allies and attorneys dressed as if for a day in court—confident, at ease, and seemingly in control. Across the water glasses and baskets of bread sat the loose-knit group of environmentalists, most of whom were hoping for a compromise, not a fight, and who seemed content to let Galvin play the “bad cop” in this drama. So he rose to make his soft-spoken pitch—a man who once spent weeks camped out watching a nesting pair of bald eagles, keeping a diary for the forest service of their every movement and meal day after day, hidden in a blind, cramped and cold and feeling utterly happy, privileged beyond measure. For him, the Tejon Ranch development plan was another example of an environmental holocaust, the sort of thing that had gotten him involved with conservation activism in the first place. He started by explaining that the best possible outcome would be to drop the plans to build a city of 70,000 called Centennial on pristine grasslands and a resort called Tejon Mountain Village abutting the condor foraging grounds and instead sell the land to the state or the feds to form a permanently protected preserve or park. Tejon Ranch Company would go down in history alongside the Rockefellers and Carnegies for its environmental generosity, its vision, and its commitment, he said. Generations would take joy in this beautiful wilderness and honor the decision. And of course, there were tax benefits.
Everyone in the room knew before another word was uttered that this idea was not going to fly. Merely selling mansions in the ten canyons where the condors once nested would bring in a profit of at least $350 million, and that was just a tiny piece of a very big puzzle. The investors in New York had not bought Tejon Ranch in order to play philanthropist—they had no interest in being eco barons. They wanted returns.
Then Galvin laid out his backup plan, the one everyone on the green side of the table would accept. He said he didn’t like it, but here it was: Go ahead, build on 30,000 acres—the whole 70,000-person Centennial project, if you must. Just move it to a less sensitive area, away from the rare native grasslands currently slated to be bulldozed, and we won’t sue. He had an alternative site already mapped out near the edge of the wildlands, and he argued that it would actually increase the profit potential because it would be less remote and so easier to build on. In return, he said, the ranch would have to cancel the resort complex and canyon mansions near the condor areas. The investors could still make a mint, and nature would fare far better.
Before the other side could do little more than bristle at that outrage, Galvin delivered the kicker: The amount of permanently preserved land had to be much more than the 100,000 acres already offered. It had to be 245,000 acres—about 90 percent of the entire property. Galvin said his biologists had determined that this was the absolute minimum needed to keep the various habitats and wildlife corridors intact.
“Nothing short of that will be acceptable,” Galvin told the suddenly steely-faced ranch people. The alternative would be spending the next fifteen years in litigation.
The offer was rejected, as Galvin expected. Not long afterward, he and the center stopped participating in the meetings and negotiations, balking at the Tejon Ranch representatives’ insistence that all talks be subject to a confidentiality agreement. What Galvin didn’t expect was the deal that the Sierra Club, Audubon, and the other environmental groups struck with the ranch owners in May 2008, in which they made the extraordinary promise not to oppose any of the developments—even before detailed plans had been drawn up. In exchange, Tejon Ranch agreed to part of Galvin’s proposal, offering up 90 percent of the land for conservation and open space as he had suggested. But this compromise left the vast development plans mostly unchanged, except for pulling back a bit from some of the ridges where the condors foraged. The agreement also allowed nearly one-third of the land that was offered for conservation to be developed, too, if the environmental groups failed to raise millions of dollars to buy the property at market rate within three years.
A media event was held at the ranch, featuring Arnold Schwarzenegger and one environmental leader after another praising the deal. Joel Reynolds, senior legal director for the Natural Resources Defense Council, called it “one of the great conservation achievements in California history…the Mount Everest of conservation in California…a once-in-a-lifetime achievement.” Bill Corcoran of the Sierra Club called it “the ecological equivalent of the Louisiana Purchase.” The Los Angeles Times proclaimed it a “landmark plan…that ends years of debate over the fate of an untrammeled tableau of mountains, wildflower fields, twisted oaks and Joshua Trees.”
Oddly missing from the official celebration by the environmentalists and company officials was any mention of the fact that 26,000 homes as well as hotels, condos, golf courses, and an industrial center were still going to be plopped in the midst of the wilderness that was being celebrated. Nor was the fact that local activists for the Sierra Club, who actually lived near the area slated for development and adamantly opposed it, had been excluded from the process and the press conference. They were forced to resign from leadership roles in the local Sierra Club chapter so they could continue to voice opposition to the development. Now the Center for Biological Diversity is their last hope.
“This agreement is going to make it harder for us to win,” Galvin says. “But that doesn’t mean we won’t win…. If we can’t save a pristine piece of wilderness that the United Nations considers to be one of the twenty-five most biologically important on earth, what can we save?”
This is why the Center for Biological Diversity and its leaders are eco barons. They do not flinch. They do not care if the top environmental organizations in the country think the Tejon compromise is the best deal ever, because at the center, they see a compromise in name only, in which only the environmentalists actually gave up something—their legal and First Amendment rights—while the company gave up nothing it really cared about. Where the news media see a triumph for the environment, the center sees a disaster.6 The people at the center are willing to be hated, because they are certain they are right.
The battle over Tejon will last for years, and for the center, the stakes are as high as in the case of the polar bears. If the center can save the Tejon wildlands, if the project can be stopped or molded into something environmentally sound, if consideration of extinction and global warming can be made to trump money and sprawl here, on California’s last frontier—its literal last frontier—then Galvin sees Tejon Ranch as the start of something big, something nationwide, a seismic shift. It will mean America is no longer stuck on the old questions of how and why we should take action against global warming and extinction, he says. We will have shifted to the questions of how much and how fast we should act.
One set of questions leads to a world for our grandchildren in which condors and polar bears still live in the wild, Galvin and Suckling and Siegel say.
The other set of questions relegates those species to life only in history books. And they will be but the canaries in the coal mine.