DC Circuit upholds polar bear listing under ESA

A federal appeals court ruled last week that the U.S. Fish and Wildlife Service properly listed the polar bear as a threatened species under the Endangered Species Act.

The court rejected a challenge by the state of Alaska and extractive industry interests to a 2008 decision by the George W. Bush administration.

Environmental conservation advocates welcomed the decision by the U.S. Court of Appeals for the District of Columbia Circuit.

"Climate change, habitat degradation and pollution already have polar bears on thin ice. Trophy hunting only exacerbates an already dire situation," Jeff Flocken, a spokesperson for the International Fund for Animal Welfare, said in a statement. "Today’s decision to keep the status of the polar bear as threatened is an important step in the fight to safeguard the species against trophy hunting." 

Federal administrative law gives judges little room to second-guess scientific determinations by agencies.

The scientific basis for listing the polar bear as a threatened species is that the species requires Arctic Ocean sea ice for habitat, that the quantity of that ice during the summer months is being reduced as the planet's atmosphere and oceans warm, and that the loss of seasonal sea ice could result a risk that the polar bear will go extinct.

The litigants did not argue that these scientific predicates for the listing decision are incorrect. Instead, the legal arguments essentially amounted to claims that FWS did not correctly conclude that the undisputed scientific facts should lead to a listing decision, or a listing of all polar bear populations; that FWS did not give enough weight to other programs to conserve the species; and that, in any case, the agency did not provide a sufficient explanation for its actions.

The polar bear was added to the federal list of threatened and endangered species after more than three years of evaluation prompted by a Feb. 2005 listing petition.

The District of Columbia Circuit's resolution of the legal fight over whether the polar bear was properly listed as a threatened species does not end all ESA litigation relating to the species. A federal district court recently held that FWS erred in its designation of critical habitat for the polar bear.