ENDANGERED SPECIES:

Polar bear fight returns to court

Federal appeals court judges gave no indication today that they see any significant legal obstacles to the Fish and Wildlife Service's decision to list the polar bear as threatened under the Endangered Species Act.

The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit is reviewing a June 2011 district court ruling that upheld the George W. Bush administration's decision to list the polar bear as threatened.

The state of Alaska, joined by industry and sporting groups, wants the bear delisted.

In his ruling, Judge Emmet Sullivan ultimately defers to the Fish and Wildlife Service's conclusion that it was reasonable to list the bear as threatened based on current science (Greenwire, June 30).

The designation of the polar bear, which raises questions about the impact of climate change, has been a contentious issue since the service first listed it in 2008.

At issue in the listing appeal is the scientific basis for the listing, which the challengers say is overly based on projections of the impact of climate change on the sea-ice habitat on which the bears rely. There has already been a significant decline in sea ice in recent decades. Studies that the Fish and Wildlife Service relied on indicate that trend will continue.

The challengers focus on the current population of polar bears, which they describe as "numerous and widespread." They also question the service's reliance on the notion that the bear will be endangered in the "foreseeable future."

During today's low-key argument, two of the three judges on the panel dismissed one of the main arguments made by the challengers: that the service had inappropriately relied upon computer modeling carried out by the U.S. Geological Survey.

The problem with that argument, Judge Harry Edwards noted, is that the USGS data actually indicated that the polar bear might be more under threat than the Fish and Wildlife Service ultimately found it to be.

Furthermore, the service made it clear that it was aware of the limitations of the modeling and did not rely on it alone in making its determination.

Edwards said the modeling data was "not critical" because "it's not what they were principally resting on."

Judge Merrick Garland also seized upon USGS's point, saying the government's acknowledgment that the conclusions reached concerning polar bear population were "too conservative" didn't seem to be helpful to the challengers' argument.

"How does that support your proposition?" he asked attorney Murray Feldman, who was arguing the case for Alaska and its allies.

Only the industry groups and Alaska appealed Sullivan's decision to uphold the listing. Environmental groups, including Center for Biological Diversity and Natural Resources Defense Council, which had argued in the lower court that the bear should be given greater protection, are defending the threatened listing on appeal.

After today's argument, CBD's Brendan Cummings said the questions from the judges indicated that "the fundamental dispute" was about whether the bear should be listed as threatened or endangered, not whether it should be listed at all.

"The logical outcome is that the listing should be upheld," he added.

The litigation over the polar bear listing also touches upon the larger debate over greenhouse gas emissions.

Some environmentalists think the Endangered Species Act could be used as a vehicle to prompt action to tackle the issue if the polar bear is deemed to be under threat due to the changes in climate.

In separate proceedings in 2011, Judge Sullivan had vacated a George W. Bush administration-era rule, issued when the polar bear was listed, that said the statute could not be used to regulate greenhouse gases.

Sullivan vacated the rule on the grounds that the Fish and Wildlife Service needed to carry out a more detailed environmental review. But he upheld the service's conclusion that the Endangered Species Act was not the appropriate vehicle to regulate greenhouse gases (Greenwire, Oct. 17, 2011).

The service hasn't yet issued the new rule. More litigation is likely when it does.

In the meantime, the D.C. Circuit will soon consider another polar bear-related appeal over whether the government was allowed to ban the importation of sports-hunted polar bear trophies under the Marine Mammal Protection Act.

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