Friday, March 1, 2013

In Re: Polar Bear Endangered Species

Mar 1: In the U.S. Court of Appeals, D.C.Circuit, Case No. 11-5219, consolidated with 11-5221, 11-5222, 11-5223. Appeals from the United States District Court for the District of Columbia. In this case the Appeals Court upheld a 2008 decision to protect polar bears throughout their range as a "threatened" species under the U.S. Endangered Species Act. The court dismissed challenges by the State of Alaska, polar bear trophy hunters and others seeking to strip the polar bear of its protection.
    The Appeals Court explains that in 2005, the Center for Biological Diversity (CBD) petitioned the Secretary of the Interior and the Fish and Wildlife Service (FWS or agency) to list the polar bear under the Endangered Species Act (ESA or Act). When a species such as the polar bear is listed as either "threatened" or "endangered" under the Act, it is then subject to a host of protective measures designed to conserve the species. After a three-year rulemaking process, FWS found that, due to the effects of global climate change, the polar bear is likely to become an endangered species and face the threat of extinction within the foreseeable future. See generally Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range ("Listing Rule"), 73 Fed. Reg. 28,212 (May 15, 2008). The agency thus concluded that the polar bear should be listed as a threatened species. Id.
    A number of industry groups, environmental organizations, and states challenged the Listing Rule as either overly restrictive or insufficiently protective of the polar bear. These challenges were consolidated as a Multidistrict Litigation case in the U.S. District Court for the District of Columbia. After a hearing on the parties' submissions, the District Court granted summary judgment to FWS and rejected all challenges to the Listing Rule. Joint Appellants filed a timely appeal to contest the District Court's judgment. They contend that the Listing Rule is arbitrary and capricious under the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), and that FWS's action should be reversed because of a series of deficiencies in the rulemaking process and the Listing Rule itself.
    The Appeals Court said, "The appellate court's task in a case such as this is a 'narrow' one. Our principal responsibility here is to determine, in light of the record considered by the agency, whether the Listing Rule is a product of reasoned decisionmaking. It is significant that Appellants have neither pointed to mistakes in the agency's reasoning nor adduced any data or studies that the agency overlooked. In addition, Appellants challenge neither the agency's findings on climate science nor on polar bear biology. Rather, the principal claim advanced by Appellants is that FWS misinterpreted and misapplied the record before it. We disagree."
    The Appeals Court also said, "In rejecting this appeal, we are guided by the Supreme Court's admonition that 'a court is not to substitute its judgment for that of the agency,' . . .particularly in cases where the issues 'require[] a high level of technical expertise,' Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377 (1989). Given these considerations and the evident thoroughness and care of FWS's explanation for its decision, we can only conclude, as did the District Court, that Appellants' challenges 'amount to nothing more than competing views about policy and science.' In re Polar Bear, 794 F. Supp. 2d at 69. Accordingly, we affirm the judgment of the District Court. . . In sum, we hold that FWS plainly satisfied its duties under Section 4(i) in responding to the State of Alaska. We therefore affirm the judgment of the District Court on this point."
    Kassie Siegel, CBD director of the Climate Law Institute said, "Today's decision is the latest legal confirmation of the indisputable science on climate change and the very real threats that polar bears face. If we're going to save polar bears, the Obama administration needs to move swiftly to cut greenhouse pollution." Rebecca Riley, attorney in NRDC's land and wildlife program said, "This ruling forces Alaska to acknowledge what has been painfully clear to everyone else: polar bears are on a collision course with climate change and deserve protection. Now, we need to get serious about tackling climate change and other threats to the species like hunting and toxic contamination." John Hocevar, Greenpeace Oceans Campaign Director said, "Today's court's decision acknowledges the devastating impact of global warming on polar bears, and ensures that important legal protections for the species will be continued."
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