After losing at the district court level, various industry groups, environmental groups, and states appealed the U.S. Fish and Wildlife Service’s designation of the polar bear as “threatened” under the Endangered Species Act. Some of the petitioners challenged the designation as overly protective and others as insufficiently protective. On March 1, 2013, the United States Court of Appeals for the District of Columbia Circuit affirmed the district court ruling, finding the designation appropriate. In re: Polar Bear Endangered Species Act Listing and Section 4(d) Rule Litigation – MDL No. 1993, 2013 BL 56260, No. 11-5219.

The Fish and Wildlife Services listed polar bears as “threatened” based on three principal considerations: (i) ”the polar bear depends on sea ice for its survival”; (ii) ”sea ice is declining”; and (iii) ”climatic changes have and will continue to reduce the extent and quality of Arctic sea ice.”

Appellants challenged the listing on seven different grounds, asserting that the Fish and Wildlife Service: (i) inadequately explained all steps in its decision-making process; (ii) should have divided polar bears into distinct population segments and erred in making a range-wide determination, because certain ecoregions were not as affected; (iii) relied on defective population models; (iv) used the wrong likelihood standard in determining that polar bears are likely to become endangered; (v) used the wrong period of time in considering the “foreseeable future”; (vi) did not consider Canada’s polar bear conservation efforts; and (vii) failed to provide Alaska with an adequate response to the state’s comments.

The Court of Appeals reviewed the Fish and Wildlife Service’s actions to determine if they were arbitrary and capricious, and held that they were not. In addressing the appellants’ arguments on the whole, the court noted that the appellants did not point to mistakes in the Service’s reasoning, cite data or studies that the Service overlooked, challenge the climate science relied upon by the Service, or challenge the Service’s findings on polar bear biology.

More specifically, the court rejected all of the appellants arguments on the following grounds: (i) Fish and Wildlife Service clearly explained how the polar bear’s habitat loss leaves the polar bear likely to become endangered, articulating a rational connection between the facts and the listing; (ii) there were insignificant differences in the polar bears to warrant separating them into distinct population segments, and sea ice is declining throughout the Arctic such that all polar bear populations will be affected; (iii) the Service explained the limitations of the population models it used and relied upon them only for a limited purpose; (iv) the Service used the dictionary definition of “likely” in determining that polar bears are likely to become endangered, which is the appropriate way to interpret an undefined statutory term; (v) the Service sufficiently justified its use of 45 years as the “foreseeable future” by relying on accepted climate models up to the point where the models diverge; (vi) the Service addressed the Canadian harvest and export program and determined that it did not address the primary threat to polar bears—the loss of sea ice; and (vii) the Service’s 45-page reply letter to Alaska showed sufficient thought about Alaska’s objections and provided reasoned responses.