A federal court in the District of Columbia has ruled that the U.S. Fish and Wildlife Service (FWS ) was not required to consider the impact of global greenhouse gas (GHG ) emissions on polar bears when it issued a “special rule” under the Endangered Species Act (ES A) in December 2008, setting protective measures for threatened species. In Re: Polar Bear Endangered Species Act Listing and 4(d) Rule Litig., No. 08-764, MDL No. 1993 (D.D.C. 10/17/11). FWS had listed polar bears as threatened in May 2008, but later issued the special rule under section 4(d) of the ES A, saying it would not seek to reduce GHG emissions to protect the species.
The court ruled that FWS reasonably concluded that its special rule provided for the protection of polar bears, even if it did not call for reducing GHG s to help reverse the trend of Arctic sea-ice loss. According to the court, FWS “concluded based on the evidence before it that Section 4(d) of the ES A is not a useful or appropriate tool to alleviate the particular threat to the polar bear from climate change caused by global (GHG ) emissions, and plaintiffs offered no compelling evidence to the contrary.” The court also ruled, however, that FWS was required to perform an analysis of the special rule’s environmental impacts under the National Environmental Policy Act (NE PA). Accordingly, the court vacated the December 2008 special rule due to NE PA violations, thereby leaving a May 2008 interim final rule in effect pending further court order.