The D.C. Circuit Court of Appeals has upheld the Fish and Wildlife Service’s (FWS’s) decision to list the polar bear as a threatened species on the basis of its finding that the species faces the threat of extinction within the foreseeable future. In Re: Polar Bear Endangered Species Act Listing, No. 11-5219 (D.C. Cir. 3/1/13). FWS published its listing, covering the polar bear throughout its range, in 2008, and the decision was challenged by a number of entities. Consolidated before a D.C. district court, the suits included claims by some challengers that the polar bear should not be listed at all and claims by others that the polar bear should be listed as endangered, i.e., immediately threatened with extinction. Alaska also asserted that FWS did not properly respond to its input during the listing process.
The listing identifies 19 discrete populations of polar bears generally found in four arctic “ecoregions,” and the court identifies three principal factors supporting the listing: the polar bear depends on sea ice for its survival, sea ice is declining, and climate changes will continue to reduce the “extent and quality of Arctic sea ice.” The challengers asserted on appeal that FWS improperly assessed the evidence before it in reaching its listing decision.
The court, however, found that no challenger “pointed to mistakes in the agency’s reasoning [or] adduced any data or studies that the agency overlooked.” Nor did any challenger assert error in either the climate science or polar bear biology underlying FWS’s decision. After reviewing each of several separate substantive challenges to the FWS decision, the court concluded that it was properly supported and also determined that FWS appropriately responded to Alaska during the listing process.