March 1, 2013

DC Circuit upholds polar bear listing

By Damien M. Schiff Senior Attorney

Earlier today, in In re: Polar Bear Endangered Species Act Listing & Section 4(d) Rule Litigation, a three-judge panel of the DC Circuit Court of Appeals upheld the United States Fish and Widlife Service’s decision to list the polar bear as a threatened species under the ESA.  (Pacific Legal Foundation represents several of the plaintiffs).  We’ll have more commentary on the decision in the coming week; suffice it to say that we’re disappointed but not surprised.  The Service receives tremendous deference from the courts in making technical and scientific judgments.  Here, the court perceived the plaintiffs’ challenge as contesting the agency’s resolution of conflicting scientific claims, and therefore found it easy to defer to the agency’s position.

In rejecting this appeal, we are guided by the Supreme Court’s admonition that “a court is not to substitute its judgment for that of the agency,” particularly in cases where the issues “require[] a high level of technical expertise.”  Given these considerations and the evident thoroughness and care of [the Service’s] explanation for its decision, we can only conclude, as did the District Court, that Appellants’ challenges “amount to nothing more than competing views about policy and science.”

Given the impact that the polar bear’s global-warming-based listing may have on productive activity in the lower 48, and the precedent-setting quality of this listing, a cert petition may well be in offing.

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