October 17, 2012

Appeals Court to hear polar bear listing challenge!

By M. Reed Hopper Senior Attorney

polar bear imageOn Friday, October 19, at 9:30am the D.C. Circuit Court of Appeals will hear oral argument in the case challenging the listing of polar bears as a “threatened” species.  But the case is not just about polar bears.  It’s also about science and the rule of law.

In May, 2008, the U.S. Fish and Wildlife Service listed the polar bear as “threatened” under the Endangered Species Act. This resulted in a number of challenges by the State of Alaska, conservation groups, and Pacific Legal Foundation representing farmers, land owners, and small and minority businesses, including the California Cattlemen’s Association and Congress of Racial Equality.

This was the first time in the history of the Act that a thriving species was listed based entirely on speculative climate models.  Although the media has taken the environmentalists’ line that polar bears are on the brink of extinction and listing the bear under the Endangered Species is the only thing that can save them, the truth is far different. The Service readily admits that the Endangered Species Act will not, indeed cannot, mitigate the worldwide effects of anthropogenic greenhouse gas emissions on climate change and melting sea ice in the Arctic–the primary threat to polar bears.  The Service also admits that the listing will add no new regulatory protections beyond those already existing from national and international laws and conservation efforts.

According to the Service:

  1. Polar bear populations are not declining overall but are the highest in recorded history;
  2. Polar bears continue to utilize their entire historic range, which is circumpolar and one of the largest habitats in the world;
  3. Polar bears do not face any sudden and calamitous threat;
  4. Polar bears are not rare, or on the brink of extinction, or critically imperiled;
  5. Fourteen of nineteen polar bear populations are stable, INCREASING, or uncertain in number;
  6. The only population that has shown a statistically significant decline in population (about 1% a year) is the Western Hudson Bay population that is 900 strong, but is still reproducing and recruiting. Interestingly, this population is in Canada and outside the regulatory control of the United States. And;
  7. Any changes in polar population is likely to be gradual over many years.

So, if the Service admits these facts, why did the Service list polar bears as “threatened” in the first place?  Well, that’s what we are wondering too.  And that’s why we are challenging the listing decision.  The law requires an explanation.

The environmentalists will tell you that polar bears are not only “threatened” but “endangered” because one biologist predicted a 2/3 decline in polar bear population by mid-century.  What they wont tell you is that the Service refuses to defend that prediction because it was never peer reviewed and is unreliable.  In fact, the Service has looked at a number of predictions based on climate models but the Service has refused to rely on any particular prediction because the timing and population numbers do not reflect actual field observations and they are too uncertain.  Instead, the Service says these predictions do at least show a “worrisome trend” in habitat loss that may lead to declines in polar bear populations.  That is true.  For polar bears, melting sea ice is worrisome.  However, melting sea ice has not resulted in a corresponding decline in population.

Under the Endangered Species Act a “threatened” species is one that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”  This definition requires the Service to determine when a species will reach a population level that is no longer sustainable.  But, as already noted, the Service has disavowed the timing and population numbers derived from climate models.  Therefore, the Service cannot make a “threatened” determination.  In effect, the Service believes, but cannot demonstrate, that polar bears are “threatened.”  This is the proverbial “I know it when I see it” argument.  But this falls far short of the long-established legal mandate that agencies must explain the reasoning behind their decision making.  As it stands now, no one knows why the Service decided that polar bears are “threatened” except that, contrary to the empirical evidence, the Service says so.

The trial court bought this argument and upheld the listing decision last year.  We appealed the case to the D.C. Circuit Court of Appeals which will hear oral argument on Friday.   The three judge panel includes Judge Janice Rogers Brown, Judge Harry Thomas Edwards, and Judge Merrik B. Garland.  Our joint briefs can be read here and here.

Given that the polar bear population is the highest ever recorded and the Service does not expect polar bears to suffer a sudden drastic decline in population, we are asking the court to require a cogent explanation of the Service for its listing decision.  If the court does not require such an explanation, the Service will have a license to list any species it deems at risk from climate change or anything else, without proof or accountability.

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