Friday, March 1, 2013

DC Circuit Upholds Polar Bear Listing as "Threatened" Species Under ESA

As a legal matter, the decision is neither surprising nor ground-breaking; it simply reconfirms that the DC Circuit defers to agency decisions, as long as they are supported by substantial evidence in the record. The case may, however, have heightened significance because of its direct relation to climate change - polar bears are the first species to be placed on the Threatened Species List under the Endangered Species Act because of habitat loss (melting sea ice) resulting from rising global mean temperatures. It is not yet clear, however, how much purchase this will give the Executive Branch in dealing with anthropogenic emissions of Greenhouse Gases, which contribute to climate change, in order to protect polar bear habitat.

Among the highlights from the court's decision:
The Listing Rule rests on a three-part thesis: the polar bear is dependent upon sea ice for its survival; sea ice is declining; and climatic changes have and will continue to dramatically reduce the extent and quality of Arctic sea ice to a degree sufficiently grave to jeopardize polar bear populations. See Listing Rule, 73 Fed. Reg. at 28,212. No part of this thesis is disputed and we find that FWS’s conclusion – that the polar bear is threatened within the meaning of the ESA – is reasonable and adequately supported by the record.
                                                            *     *     *
[S]everal of Appellants’ challenges rely on portions of the record taken out of context and blatantly ignore FWS’s published explanations. Others, as the District Court correctly explained, “amount to nothing more than competing views about policy and science,” on which we defer to the agency.
                                                            *      *      *
Significantly, Appellants point to no scientific findings or studies that FWS failed to consider in promulgating the Listing Rule. At oral argument, Appellants’ counsel acknowledged that Appellants do not claim that FWS failed to use the “best scientific and commercial data available” as required by 16 U.S.C. § 1533(b)(1)(A). See Oral Argument at 25:22. Rather, “Appellants merely disagree with the implications of the data for the species’ continued viability.
Where, as here, the foundational premises on which the agency relies are adequately explained and uncontested, scientific experts (by a wide majority) support the agency’s conclusion, and Appellants do not point to any scientific evidence that the agency failed to consider, we are bound to uphold the agency’s determination. Therefore we affirm the District Court’s decision to uphold the Listing Rule.
The entire decision can be read here.

No comments:

Post a Comment

I actively moderate comments for spam, advertisements, and abusive or offensive language.