D.C. Circuit Affirms Polar Bear Listing
In an opinion released earlier today, the D.C. Circuit Court of Appeals unanimously rejected challenges to the listing of the polar bear as a threatened species under the Endangered Species Act. Read the full opinion, In re: Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation – MDL No. 1993.
Holly has discussed the ongoing litigation over the polar bear listing in depth here and here.
As I mentioned in a previous post, the polar bear is one of a few climate-imperiled listed species. The U.S. Fish and Wildlife Service (FWS) listed the polar bear as threatened in 2008 due to its shrinking sea-ice habitat. Shortly thereafter, multiple industry groups challenged the listing determination under the Administrative Procedure Act’s “arbitrary and capricious” standard, arguing that the agency failed to establish a foreseeable extinction risk. Environmental groups also challenged the listing as insufficiently protective, arguing that the polar bear warranted a listing as endangered. All challenges were consolidated into a multidistrict litigation before the D.C. District Court. The District Court rejected all challenges on summary judgment, finding that the claims “amount to nothing more than competing views about policy and science,” an issue on which the agency receives deference.
On appeal, appellants Safari Club International, et al. specifically claimed that FWS misinterpreted the record and failed to adequately articulate the grounds for its listing determination. Interestingly, the State of Alaska separately claimed that FWS failed to comply with section 4(i) of the Endangered Species Act, which requires FWS to provide a state with a “written justification” should it fail to adopt regulations consistent with a state’s suggestions. (Alaska had submitted comments on FWS’s proposed rule, to which FWS responded with a 45-page letter. Apparently, Alaska “simply disagree[d] with the substantive content” of FWS’s response.)
In today’s decision, the Court of Appeals affirmed the District Court ruling, emphasizing that “a court is not to substitute its judgment for that of the agency” (quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377 (1989)). The Court further noted, “The Listing Rule is the product of FWS’s careful and comprehensive study and analysis. Its scientific conclusions are amply supported by data and well within the mainstream on climate science and polar bear biology.”
The holding reads (p. 16):
Where, as here, the foundational premises on which the agency relies are adequately explained and uncontested, scientific experts (by a wide majority) support the agency’s conclusion, and Appellants do not point to any scientific evidence that the agency failed to consider, we are bound to uphold the agency’s determination.
Today’s opinion is a win for agencies like FWS that routinely base administrative decisions on scientific modeling and other complex data. On a lighter note, it may also be a win for those of us who regularly read law review articles, since the D.C. Circuit has now confirmed that 45 pages is sufficient to “adequately address” a disputed issue.
Reader Comments
8 Replies to “D.C. Circuit Affirms Polar Bear Listing”
Comments are closed.
About Megan
As the Emmett/Frankel Fellow at UCLA School of Law from 2012 to 2016, Megan Herzog taught and researched environmental law and policy issues for the Emmett Institute on C…
READ more
Nice post, Megan. Two things to add.
First, one of the most interesting things about this decision is what isn’t there. Environmental groups had challenged the listing in the trial court, arguing that the polar bear qualified as an endangered, rather than a threatened, species. They lost on that one, and chose not to appeal. Instead, they intervened to support FWS against the industry/Alaska challenge. I explained in an earlier post (which I can’t figure out how to link to in this comment) that I think the way FWS got to declaring the polar bear merely threatened is potentially quite problematic. Either the environmental plaintiffs disagree with me or they don’t want the DC Circuit endorsing FWS’s approach.
Second, it’s unclear what benefit, if any, the listing offers the polar bear, given the 4(d) rule FWS issued with the listing and re-issued this week (after it was remanded for failure to comply with NEPA). Under that rule, any activity occurring outside the geographic range of the polar bear (think greenhouse gas emissions) and any activity authorized under the Marine Mammal Protection Act (think oil and gas production in the arctic) does not violate the ESA’s prohibition on take. Put that together with FWS’s belief (perhaps correct) that there’s no useful way to do consultation on greenhouse gas emissions and it looks like you’ve got a lot of time spent on the polar bear listing and litigation to purely symbolic effect. Or at least you do if FWS prevails on the next 4(d) lawsuit, which is surely coming soon.
Nice post, Megan. Two things to add.
First, one of the most interesting things about this decision is what isn’t there. Environmental groups had challenged the listing in the trial court, arguing that the polar bear qualified as an endangered, rather than a threatened, species. They lost on that one, and chose not to appeal. Instead, they intervened to support FWS against the industry/Alaska challenge. I explained in an earlier post (which I can’t figure out how to link to in this comment) that I think the way FWS got to declaring the polar bear merely threatened is potentially quite problematic. Either the environmental plaintiffs disagree with me or they don’t want the DC Circuit endorsing FWS’s approach.
Second, it’s unclear what benefit, if any, the listing offers the polar bear, given the 4(d) rule FWS issued with the listing and re-issued this week (after it was remanded for failure to comply with NEPA). Under that rule, any activity occurring outside the geographic range of the polar bear (think greenhouse gas emissions) and any activity authorized under the Marine Mammal Protection Act (think oil and gas production in the arctic) does not violate the ESA’s prohibition on take. Put that together with FWS’s belief (perhaps correct) that there’s no useful way to do consultation on greenhouse gas emissions and it looks like you’ve got a lot of time spent on the polar bear listing and litigation to purely symbolic effect. Or at least you do if FWS prevails on the next 4(d) lawsuit, which is surely coming soon.
Thank you for adding your analysis and expertise, Holly. Readers definitely should refer to your excellent posts on the polar bear listing here: http://legalplanet.wordpress.com/2011/07/01/court-upholds-polar-bear-threatened-status/ and here: http://legalplanet.wordpress.com/2010/11/06/polar-bear-listing-remanded/
Thank you for adding your analysis and expertise, Holly. Readers definitely should refer to your excellent posts on the polar bear listing here: http://legalplanet.wordpress.com/2011/07/01/court-upholds-polar-bear-threatened-status/ and here: http://legalplanet.wordpress.com/2010/11/06/polar-bear-listing-remanded/