A multidistrict litigation (MDL) court in the District of Columbia has ordered the U.S. Fish and Wildlife Service (FWS) to reconsider a May 2008 final rule listing the polar bear as a threatened rather than an endangered species under the Endangered Species Act (ESA). In Re Polar Bear ESA Listing & § 4(d) Rule Litig., MDL No. 1993 (D.D.C. 11/4/10).

According to the court, the FWS rule, which was based on an interpretation of the ESA that a species must be in imminent danger of extinction before it can be designated as endangered, was erroneous. Several environmental groups filed nearly a dozen separate lawsuits claiming that the rule was arbitrary, capricious and an abuse of discretion, and the cases were consolidated by the Judicial Panel on Multidistrict Litigation.

Concluding that FWS had failed to acknowledge ambiguities in the definition of endangered species, the MDL court remanded the rule to the agency “for the limited purpose of providing additional explanation for the legal basis of its listing determination, and for such further action as it may wish to take in light of the Court’s finding that the definition of an ‘endangered species’ under the ESA is ambiguous.” The court also scheduled a hearing for February 23, 2011, to hear arguments on this issue and the remaining issues in the case. The rule will remain in effect during the remand period.