In Re Polar Bear Endangered Species Act Listing
794 F. Supp. 2d 65
D.D.C.2011Background
- May 15, 2008 Listing Rule listed polar bear as threatened under ESA due to anticipated sea ice habitat loss from warming.
- Court previously remanded for Chevron step-one defects; on remand, agency provided a supplemental explanation.
- USGS population models and IPCC climate data formed part of the record; polar bears comprise 19 populations across four ecoregions.
- Agency concluded range-wide threat to all polar bears but not endangered status at listing; foreseeability set at 45 years.
- Case procedural posture involved cross-motions for summary judgment; remand followed by supplemental briefing and hearings; court denies plaintiffs' motions and grants defendants' motions.
- Agency applied DPS Policy to assess discrete populations; no population or ecoregion found to be discrete, so no DPS designation was made.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the listing decision can be sustained under Chevron after remand | CBD argues the Supplemental Explanation is not Chevron-worthy | Defendants contend Chevron review is applicable to the remand analysis | Chevron review applies to the remand analysis; upheld rational basis under step two. |
| Whether FWS properly treated 'likely' to become endangered without a numeric standard | Joint Plaintiffs claim 67-90% likelihood was required | Agency did not adopt a fixed numeric standard; used qualitative terms | No fixed 67-90% standard; agency's use of 'likely'/ 'very likely' upheld. |
| Whether the 45-year 'foreseeable future' is a rational timeframe | Plaintiffs contend 45 years was arbitrarily chosen | IPCC and generation-length considerations justify 45-year horizon | Court finds 45-year horizon sufficiently rational and grounded in best available science. |
| Whether any polar bear population or ecoregion qualifies as a DPS | CBD/SCI/CF contend there are discrete populations or ecoregions | FWS's DPS Policy is a valid, deferable framework; no discreteness shown | FWS reasonably declined to designate a DPS; rational under DPS Policy. |
| Whether FWS properly took foreign conservation efforts and best available science into account | Plaintiffs claim foreign programs were not adequately considered and science was uncertain | FWS adequately took foreign efforts into account and relied on IPCC/USGS as best available science | Agency satisfactorily satisfied §1533(b)(1)(A) and used best available science. |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (U.S. 1984) (establishes framework for reviewing agency interpretations of statutes)
- Babbitt v. Sweet Home, 515 U.S. 687 (U.S. 1995) (judicial deference to agency expertise in listing decisions)
- Marsh v. Oregon Natural Res. Council, 490 U.S. 360 (U.S. 1989) (high level of technical expertise warrants deference to agency decisions)
- Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976) (agency decisions reviewed for rational connection to the record)
- Sw. Ctr. for Biol. Diversity v. Babbitt, 215 F.3d 58 (D.C. Cir. 2000) (best available science required even if inconclusive; deference to agency)