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Focus on Regulation

Polar Bear Endangered Species Act Listing Upheld by D.C. Circuit While New Challenge May Loom

A recent denial of rehearing by the D.C. Circuit Court of Appeals brought closure to a lawsuit challenging a five-year old decision by the U.S. Fish and Wildlife Service (FWS) to list the polar bear under the Endangered Species Act (ESA).  One environmental group, however, has now indicated its intent to sue FWS with a new challenge concerning the polar bear’s listing.

On May 15, 2008, FWS finalized its rule listing the polar bear (ursus martimus) as a threatened species under the ESA (the Listing Rule).  FWS reasoned that, due to the impacts of climate change and the loss of summer sea ice habitat, polar bears faced extinction within the forseeable future.  Several lawsuits challenging the Listing Rule were filed by states, industry and environmental groups and consolidated before the U.S. District Court for the District of Columbia, which upheld the FWS’ listing of the polar bear as threatened.  In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation, 794 F. Supp.2d 65 (D.D.C. 2011).  In a March 1, 2013 opinion the D.C. Circuit agreed with the district court’s decision and also upheld FWS’ Listing Rule. 

The D.C. Circuit explained:

The Listing Rule rests on a three-part thesis: the polar bear is dependent upon sea ice for its survival; sea ice is declining; and climate changes have and will continue to dramatically reduce the extent and quality of Arctic sea ice to a degree sufficiently grave to jeopardize polar bear populations. . . . No part of this thesis is disputed and we find that FWS’s conclusion—that the polar bear is threatened within the meaning of the ESA—is reasonable and adequately supported by the record.

On April 29, 2013, the D.C. Circuit rejected without comment requests for a panel rehearing and rehearing en banc, bringing closure to that challenge of FWS’ Listing Rule.

Following the D.C. Circuit’s rejection of rehearing, on the five-year anniversary of the Listing Rule, May 15, 2013, the Center for Biological Diversity issued a notice of intent to sue to FWS for allegedly “failing to timely conduct a [five-year] status review and complete a recovery plan” under the ESA since listing the polar bear in 2008.  A 60-day notice of intent is required before a lawsuit can be filed under the ESA.

In related ursus martimus news, on February 20, 2013, the FWS issued a new Final Special Rule under section 4(d) of the ESA. The ESA’s § 4(d) is significant because it allows the Service to use the Marine Mammal Protection Act to develop practices for on-site management of the polar bear in the bear’s range—such as bear patrols or site-specific plans for oil and gas exploration and development projects—not allowed under the ESA.  It also provides that incidental take of polar bears resulting from activities outside the bear’s range—such as from increased greenhouse gas emissions—is not prohibited under the ESA.  The Final Special Rule is unchanged from the April 19, 2012 proposed rule (described in a previous blog) and became effective as of March 22, 2013.