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In re Polar Bear Endangered Species Act Listing

ELR Citation: 41 ELR 20319
Nos. 08-764, (D.D.C., 10/17/2011) (Sullivan, J.)

A district court held that the FWS violated NEPA, but not the ESA, when it issued a special rule that specifies the protective mechanisms that apply to the polar bear as a result of its threatened status. In May 2008, the FWS listed the polar bear as threatened under the ESA. The Service then issued a special rule that, among other things, addressed the threat of direct impacts to individual bears and their habitat from oil and gas exploration and development activities within the species' current range. Conservation groups filed suit, arguing that the FWS purposely and unlawfully crafted the rule in such a way as to avoid addressing the threat of climate change in contravention of the ESA's conservation mandate. They argued that the FWS cannot effectively provide for the conservation of the polar bear without addressing global greenhouse gas emissions, which the agency itself identified as the cause of increasing Arctic temperatures that are expected to lead to a significant decline of the polar bear's sea ice habitat. Climate change, however, poses unprecedented challenges of science and policy on a global scale that entitles the agency to great deference. Based on the evidence before it, the FWS reasonably concluded that ESA §4(d) is not a useful or appropriate tool to alleviate the particular threat to the polar bear from climate change caused by global greenhouse gas emissions, and the groups offered no compelling evidence to the contrary. However, the court agreed with the groups that the FWS violated NEPA by failing to analyze the potential environmental impacts of its special rule. The FWS was required to conduct at least an initial assessment to determine whether the rule warranted a full EIS. Because the FWS conducted no analysis whatsoever, the rule violates NEPA and must be vacated.