District Court Upholds Polar Bear Listing

Yesterday, the federal district court in D.C. upheld the federal government’s decision to list polar bears as “threatened” under the Endangered Species Act against challenges from all sides. Environmentalist organizations argued the government should have instead listed the polar bear as “endangered” (a more protected status), while Alaska and industry groups argued the polar bear should not have been listed at all. As I expected, the Fish & Wildlife Service’s decision has been sustained. In In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation, Judge Sullivan turned away the challenges from both sides and deferred to the agency’s determination.

Holly Doremus analyzes the opinion here. I’ve posted the opening of the 116-page opinion below the fold.

In May 2008, the U.S. Fish and Wildlife Service (“FWS” or “the Service”) issued its final rule listing the polar bear as a “threatened species” under the Endangered Species Act of 1973. See Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range, 73 Fed. Reg. 28,212 (May 15, 2008) (the “Listing Rule”). The Service concluded that the polar bear is likely to become endangered within the foreseeable future because of anticipated impacts to its sea ice habitat from increasing Arctic temperatures, which have been attributed to global greenhouse gas emissions and related atmospheric changes. Numerous plaintiffs have challenged the Listing Rule under the Endangered Species Act (“ESA” or “the Act”), 16 U.S.C. §§ 1531-1544, and the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551-559, 701-706, claiming that the Service’s decision to list the polar bear as a threatened species was arbitrary and capricious and an abuse of agency discretion. Pending before the Court are the parties’ cross-motions for summary judgment.

As the briefing in this case makes clear, the question of whether, when, and how to list the polar bear under the ESA is a uniquely challenging one. The three-year effort by FWS to resolve this question required agency decision-makers and experts not only to evaluate a body of science that is both exceedingly complex and rapidly developing, but also to apply that science in a way that enabled them to make reasonable predictions about potential impacts over the next century to a species that spans international boundaries. In this process, the Service considered over 160,000 pages of documents and approximately 670,000 comment submissions from state and federal agencies, foreign governments, Alaska Native Tribes and tribal organizations, federal commissions, local governments, commercial and trade organizations, conservation organizations, nongovernmental organizations, and private citizens. In addition to relying on its own experts, the agency also
consulted a number of impartial experts in a variety of fields, including climate scientists and polar bear biologists.

In view of these exhaustive administrative proceedings, the Court is keenly aware that this is exactly the kind of decisionmaking process in which its role is strictly circumscribed. Indeed, it is not this Court’s role to determine, based on its independent assessment of the scientific evidence, whether the agency could have reached a different conclusion with regard to the listing of the polar bear. Rather, as mandated by the
Supreme Court and by this Circuit, the full extent of the Court’s authority in this case is to determine whether the agency’s decision-making process and its ultimate decision to list the polar bear as a threatened species satisfy certain minimal standards of rationality based upon the evidence before the agency at that time.

For the reasons set forth below, the Court is persuaded that the Listing Rule survives this highly deferential standard. After careful consideration of the numerous objections to the Listing Rule, the Court finds that plaintiffs have failed to demonstrate that the agency’s listing determination rises to the level of irrationality. In the Court’s opinion, plaintiffs’ challenges amount to nothing more than competing views about policy and science. Some plaintiffs in this case believe that the Service went too far in protecting the polar bear; others contend that the Service did not go far enough. According to some plaintiffs, mainstream climate science shows that the polar bear is already irretrievably headed toward extinction throughout its range. According to others, climate science is too uncertain to support any reliable predictions about the future of polar bears. However, this Court is not empowered to choose among these competing views. Although plaintiffs have proposed many alternative conclusions that the agency could have
drawn with respect to the status of the polar bear, the Court cannot substitute either the plaintiffs’ or its own judgment for that of the agency. Instead, this Court is bound to uphold the agency’s determination that the polar bear is a threatened species as long as it is reasonable, regardless of whether there may be other reasonable, or even more reasonable, views. That is particularly true where, as here, the agency is operating at the frontiers of science.

In sum, having carefully considered plaintiffs’ motions, the federal defendants’ and defendant-intervenors’ crossmotions, the oppositions and replies thereto, various supplemental briefs, the supplemental explanation prepared by FWS in response to this Court’s November 4, 2010 remand order, arguments of counsel at a motions hearing held on February 23, 2011, the relevant law, the full administrative record, and for the reasons set forth below, the Court finds that the Service’s
decision to list the polar bear as a threatened species under the ESA represents a reasoned exercise of the agency’s discretion based upon the facts and the best available science as of 2008 when the agency made its listing determination. Accordingly, the Court hereby DENIES plaintiffs’ motions for summary judgment and GRANTS the federal defendants’ and defendant-intervenors’ motions for summary judgment.

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