More Protection for Polar Bears?

Another chapter has been added to the polar bear listing saga. The battle for protecting polar bears under the Endangered Species Act (ESA) began on February 16, 2005, when the Center for Biological Diversity filed a petition for listing the polar bear as threatened – meaning the species was likely to become endangered within the foreseeable future throughout all or a significant portion of its range. The ESA requires the U.S. Fish and Wildlife Service (FWS) to determine within 90 days of receiving a petition whether the petition “presents substantial scientific or commercial information indicating that the petitioned action may be warranted.” The determination must be made solely on the basis of “best available science.” If listing is warranted, FWS must issue a proposed listing rule within one-year of receipt of the petition for listing, and finalize the listing rule within one year of issuing the proposed rule. If a species is listed an threatened or endangered, critical habitat must be designated concurrently with the listing .

On December 15, 2005, Center for Biological Diversity and other environmental groups filed a lawsuit against FWS to compel a response to the petition for listing. In June 2006, FWS settled the lawsuit, and the proposed listing rule was issued on January 9, 2007. When FWS missed the 1-year deadline for finalizing the rule, the environmental groups filed suit again, leading to a court order to issue the rule. FWS’s final listing rule, proposing that the polar bear be listed as threatened under section 4(d) of the Endangered Species Act, was issued on May 14, 2008. Section 4(d) of the ESA allows FWS to bypass normal protections of ESA and develop special regulations for threatened, but not endangered, species when “necessary and advisable for the conservation of such species.”

Though a 4(d) listing rule has the potential to increase protection for species beyond the normal protections of the ESA, environmentalists feared that the listing of the polar under 4(d) would allow activities in critical habitat that might otherwise be prohibited, such as oil drilling and development. On May 16, 2008, environmental groups filed a new lawsuit against FWS arguing that FWS violated the Administrative Procedure Act by promulgating the 4(d) rule without a notice and comment period, failing to designate critical habitat at the time of listing and for listing the polar bear as threatened rather than endangered, in addition to violating the National Environmental Policy Act (NEPA) by promulgating a 4(d) rule without an environmental impact statement (EIS).

FWS reached a settlement with the environmental groups to designate critical habitat in October 2008 and proposed critical habitat in October 2009. On June 30, 2011, the District Court of DC upheld the FWS reasoning for listing the polar bear as threatened rather than endangered. The court found that FWS’s listing decision was not arbitrary or capricious given the competing science and policy views at the time. On October 17, 2011, the court held that the special listing provided adequate protection for polar bears even though it did not require reductions of greenhouse gas emissions. The court also decided that FWS violated NEPA in not issuing an EIS for the special 4(d) listing which considered the impact of climate change. In light of the error, the court has asked FWS to provide more information on whether losing Arctic sea ice habitat to global warming could warrant a listing as endangered rather than threatened. The FWS has until December 23 to reply. The Center for Biological Diversity, which has lead to charge for protecting polar bears under the ESA called the decision “bittersweet. ”


By Shani Harmon, GIELR Staff