March 1, 2013

More polar bear analysis

By Damien M. Schiff Senior Attorney

As I mentioned in an earlier post, the DC Circuit’s opinion today upholding the polar bear listing relies mainly on the principle of deference to administrative decision-making that is at the so-called “frontiers of science.”  But I think it also fair to say that the court misconstrued or simply misunderstood what PLF’s main argument was.  We contended that the Service cannot list a species simply because the species is in a downward trend.  Instead, the Service must show how, given the downward trend, the species will likely be endangered with extinction within the foreseeable future.

Thus, with the polar bear, we argued that the data show only that sea ice melt will continue into the future, and that polar bear populations will decrease.  But we also argued that the Service had failed to show that the polar bear would be threatened in light of this downward trend, as opposed to being subject merely to a downward trend.  Logically, there is a spectrum between a healthy population and a threatened population.  The slide from the former to the latter can, as with the polar bear, take some time.  But not until the population actually reaches the threatened mark can it be threatened.  In other words, logically there must be an intervening point between healthy and threatened status where one can say, “this population isn’t doing as well as it once was, and may become threatened in the future if this trend continues.”  The Service’s approach to the polar bear listing does not recognize this logical necessity.

Unfortunately, neither apparently did the court.  To begin with, the court erroneously concludes that no party contested that “climatic changes have and will continue to dramatically reduce the extent and quality of Arctic sea iceto a degree sufficiently grave to jeopardize polar bear populations.”  (emphasis added).  We agree to a certain extent with the first part of that sentence, but certainly not with its second part.  The court’s opinion later on seemingly addresses our argument, but its refutation is simply a recitation of the Service’s inadequate reasoning.

For example, the court contends that the record amply supports the propositions that sea ice loss harms the polar bear, demographic trends for some polar bear populations are moving downward, and that reduced numbers and habitat can be expected range-wide.  Yet our argument assumes the truth of these assertions yet nevertheless contends that they are inadequate to establish threatened status, as opposed to merely substantiating the existince of threats.

One might counter:  if there is a downward trend, and no sign of a reversal of that trend, why can’t one simply extrapolate out to threatened status?  In theory, that’s possible; but here the Service expressly found that the data only allowed a prognostication of the polar bear’s status into mid-century.  Thus, the downward trend must stop at that point.  And even at that point, by the Service’s own numbers, there are expected to be large populations of polar bears remaining.

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