Endangered Species Law & Policy

On October 20, 2010, at a hearing on a motion for summary judgment filed by Greenpeace, Natural Resources Defense Council, and the Center for Biological Diversity, a federal judge indicated that he intends to remand to the Fish & Wildlife Service its controversial decision to list the Polar bear as a threatened species rather than an endangered species.   See Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, No. 1:08-mc-00764-EGS (D.D.C. filed Dec. 4, 2008).

The U.S. Fish & Wildlife Service made history two years ago when it listed the Polar bear as a threatened species because it identified the devastating impacts of climate change on the bear's habitat as a major factor in the species' alarming decline.  In addition, the Polar Bear is the first, and so far, only mammal to be listed specifically due to climate change impacts.

Environmentalists had hoped that the listing would force the federal government to use its considerable regulatory authority under the Endangered Species Act to impose strict limits on emissions of greenhouse gases (GHGs).  But a controversial rule issued by the Department of the Interior under Section 4(d) of the Endangered Species Act placed strict geographic limits on the authority of federal agencies to require projects in Alaska to curb or mitigate their GHG emissions.  As previously reported here, much to the dismay of environmentalists, the Department of the Interior under the Obama Administration chose not to overturn the polar bear rule.  Instead, the Obama Administration has called for new legislation to address GHG emissions, and the EPA may use its authority under the Clean Air Act to regulate GHGs.

Environmentalists immediately challenged the Polar Bear Listing Rule, arguing that the species should be listed as endangered, not threatened.  If they prevail on that issue, and the bear attains endangered status, then the Department of the Interior will no longer have the power to issue a 4(d) rule for the Polar bear.  Without the limits in the existing 4(d) rule, the wildlife agencies could, in theory, impose limits on GHG emissions from facilities and projects that receive discretionary federal funding or approvals anywhere in the country based on their impacts on climate change, which impacts the Polar bear.

The environmental plaintiffs have also challenged the validity of the 4(d) rule itself.  Thus, if the Polar Bear Listing Rule is ultimately upheld, their challenge to 4(d) rule will remain to be decided in subsequent proceedings.

The judge's inclination to remand the listing decision to the Fish & Wildlife Service does not signal a victory for the environmental plaintiffs in the litigation.  The judge explained that he cannot reach a decision on the merits of the environmentalists' challenge to the listing decision without more information from the agency.

In its listing decision, the Fish & Wildlife Service explained that it declined to list the bear as endangered because it is not in "imminent danger" of extinction.  But the Endangered Species Act does not expressly include the "imminent danger" standard.  Instead, it states that a species is endangered if it is in danger of extinction throughout all or a significant portion of its range.  16 U.S.C. § 1532(6).  Thus, the judge indicated that he is considering a remand to obtain additional explanation from the agency for its interpretation of the phrase "in danger of extinction" in the Polar Bear Listing Rule. 

The judge has requested that the parties brief the issue whether the Fish & Wildlife Service is "required to follow 'notice and comment' rule-making procedures on remand if the court were to remand to the agency for the limited purpose of providing additional explanation for its interpretation of the phrase 'in danger of extinction' . . . ."  Briefs are due October 27, 2010.

If the agency is required to follow "notice and comment" rule-making, it could be months before it completes the process.  Otherwise, the agency may be able to submit supplemental briefing explaining its interpretation in a relatively short period of time, allowing the court to rule on the environmentalists' motion for summary judgment in a matter of weeks or months.