ENDANGERED SPECIES:

Judge asks Obama admin to explain polar bear listing

A federal judge in Washington ordered the Obama administration today to explain its interpretation of the Endangered Species Act in a high-profile case concerning the status of polar bears and the wider issue of climate change.

U.S. District Judge Emmet Sullivan of the District of Columbia had indicated at a hearing last month his plans to remand part of the case to the Fish and Wildlife Service so it could better explain why, since 2008, polar bears have been listed as "threatened" under the ESA (E&ENews PM, Oct. 20).

Environmental groups filed suit, saying the bears should be listed as "endangered," a higher threat level than "threatened," while business groups say the animals shouldn't be listed at all.

Sullivan's order does not mean that environmental groups have won on the listing point, because the government has a chance to argue that the ESA is written ambiguously, which, under Supreme Court precedent, requires courts to defer in most instances to a government agency's interpretation of the law.

Sullivan wrote that he was remanding the case to the agency "for the limited purpose of providing additional explanation for the legal basis of its listing determination." He also said the agency was free to conclude that there is "no reasonable interpretation of the statute" that supports its argument. If so, "new rulemaking procedures may be warranted," he said.

Lawyers for the environmental groups seized on that language to argue that Sullivan's order gives the administration the opportunity to rethink the listing determination altogether.

"He leaves the door open for the Obama administration," said Kassie Siegel, an attorney with the Center for Biological Diversity. "They can and should change their minds."

Few are expecting the administration to make such a move.

It's most likely the government will merely file a memorandum with the court providing a more detailed analysis as to why polar bears should be listed as threatened, lawyers familiar with the case said.

The government has until Dec. 23 to respond. Sullivan has ordered a hearing on the issue for Feb. 23.

“We a reviewing the decision to determine our next steps,” a Justice Department spokesman said.

The case has attracted considerable interest in large part because environmental groups, including the Center for Biological Diversity and Defenders of Wildlife, argue that the melting ice that is threatening the future of polar bears is a side effect of global warming caused by greenhouse gas emissions.

ESA as emissions curb

The groups maintain that ESA should be used as a tool to curb emissions as a way to protect the polar bear habitat.

The Obama administration, which would prefer Congress to pass legislation dealing with climate change, has said the act should not be used in such a way.

The "threatened" listing was approved at the tail end of the George W. Bush administration. The Interior Department conceded then that melting ice was the reason.

The listing is crucial to the question of regulating emissions because of a related regulation, approved at the same time by the George W. Bush administration's then-Interior Secretary Dirk Kempthorne, which stated that a finding that polar bears were covered by the ESA could not be used as grounds for reducing greenhouse gas emissions nationwide.

The Obama administration retained the Bush-era regulation, which only applies if polar bears are listed as threatened. If they are reclassified as endangered, the regulation, known as the 4(d) rule, would no longer apply. That would give environmental groups more leverage to argue that the government should require reduced greenhouse gas emissions in order to protect the bears.

Even if the administration doesn't change course and the environmentalists lose on the listing point, they have a second argument, namely that the 4(d) rule should be discarded. Sullivan will hear arguments on that point in April, after the listing issue is resolved.

"We still think we are going to win this case," said Andrew Wetzler, an attorney with the Natural Resources Defense Council.

The case also involves several business groups, including the U.S. Chamber of Commerce and American Petroleum Institute, which have joined the government in arguing that the ESA should not be used to regulate emission.

The state of Alaska, which opposes any protections, has also intervened. The complaints were all consolidated and assigned to Sullivan.