ENDANGERED SPECIES:

Judge skeptical about remanding polar bear case to Obama admin

A federal judge today appeared reluctant to ask the Obama administration to reconsider whether the polar bear should be listed as threatened under the Endangered Species Act.

The designation of the polar bear has been a contentious issue since the George W. Bush administration first listed the bear as threatened in 2008.

Environmentalists want it listed as endangered, which would give it greater protections, while industry groups do not want it listed at all.

Hanging over the matter is the issue of global warming and its potential impact on the polar bear's habitat. Environmentalists argue that greenhouse gases are to blame and that the ESA could be used to regulate emissions, an approach the Obama administration opposes.

At the latest hearing in the case today, U.S. District Judge Emmet Sullivan of the District of Columbia asked probing questions of Kassie Siegel, an attorney with the Center for Biological Diversity, who argued for the case to be remanded back to the U.S. Fish and Wildlife Service.

The hearing is ongoing with Sullivan due to hear arguments from the government this afternoon.

Sullivan seemed particularly concerned about the question of whether it would be appropriate for him to remand for a reconsideration of the threatened listing, even if he did end up agreeing with the environmentalists' position.

"The court would essentially be ordering a new rulemaking," Sullivan said. "There's something very troubling about that."

Sullivan also hinted that Siegel's issue with FWS's original rule was not that it failed to follow the correct procedures but that it weighed data in a way that environmentalists did not agree with.

"What is it that the government didn't do?" he asked. "What would this court be telling the government to do that it didn't already do?"

Siegel argued in response that the government had "failed to use the best available science," although she conceded that the agency had access to the relevant data.

Today's hearing also focused on whether the administration's analysis on why the polar bear should be listed as threatened is a reasonable interpretation of the law.

Under Supreme Court precedent, when the meaning of a statutory phrase -- in this case, the definition of "endangered" in the ESA -- is not easily discernible, government agencies have discretion to interpret the law, within certain boundaries.

In November, Sullivan pronounced himself unsatisfied with the administration's initial arguments and asked its lawyers to explain themselves in more detail.

In December, government lawyers responded, maintaining that, under their interpretation of the ESA, a species is only endangered when it is "currently on the brink of extinction in the wild" (Greenwire, Dec. 23, 2010).

Siegel told Sullivan today that the new filing did not merit deference because the government had effectively adopted a "new rationale" for defining what "endangered" means.

"They couldn't support the previous definition, so they changed it," Siegel said.

That exchange prompted Sullivan to question why environmentalists are so keen for the polar bear to be listed as endangered.

"What does all that mean in the real world?" he said.

As the litigation before Sullivan continues, the Obama administration has moved ahead with plans to designate protected critical habitat for the polar bear.

In November, the administration announced plans to designate 187,000 square miles of onshore barrier islands, denning areas and offshore sea ice as critical habitat (Greenwire, Nov. 24, 2010).

That proposal has already been the target of separate legal challenges.

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