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In re Polar Bear Endangered Species Act Listing

ELR Citation: 41 ELR 20220
Nos. 08-764, (D.D.C., 06/30/2011) Listing upheld

A district court, in a 116-page opinion, upheld the FWS' final rule listing the polar bear as a threatened species under the ESA. The FWS' decision to list the bear represents a reasoned exercise of the agency's discretion based on the facts and the best available science as of 2008 when the agency made its listing determination. Numerous plaintiffs challenged the rule, claiming that the FWS' decision was arbitrary and capricious and an abuse of agency discretion. But in the court's opinion, plaintiffs' challenges amount to nothing more than competing views about policy and science. Some plaintiffs argued that the FWS went too far in protecting the polar bear; others contend that the FWS 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. The court, however, is not empowered to choose among these competing views. Instead, it 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.