June 30, 2011

Polar bear listing upheld – but court gets it wrong!

By Polar bear listing upheld – but court gets it wrong!

Author: Reed Hopper

In May, 2008, the U.S. Fish and Wildlife Service listed the polar bear as a "threatened" species under the Endangered Species Act.  This resulted in a number of challenges by environmental groups, the State of Alaska, conservation groups, and Pacific Legal Foundation representing farmers, land owners, as well as small and minority businesses.  

Today, the D.C. District Court issued a decision upholding the listing of the polar bear as a "threatened" species.  However, the court got it wrong.

Rather than apply its independent judgment to the disputed facts, the court accepted the government's assertions about the status of the species at face value.   This is contrary to judicial practice which requires the court to ascertain for itself that the facts support each conclusion and that all inferences drawn from the facts are fully explained and reasonable.  In this case, the court gave complete deference to the agency in the face of obvious gaps in both facts and reasoning.  Perhaps the most glaring error is the court's failure to require a cogent explanation as to why the following facts, admitted by the agency and accepted by the court, support the agency's ultimate conclusion that the polar bear is likely to become endangered in the foreseeable future:

1.  polar bear populations are not declining overall but are the highest in recorded history;

2.  polar bears continue to utilize their 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.  14 of 19 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 bear populations is likely to be gradual over many years.

The agency argued that these facts do not justify listing the polar bear as an "endangered" species–a conclusion with which the court agrees–but offers no persuasive reason as to why these same facts do justify listing the polar bear as "threatened."  The agency offers only its subjective judgment that listing is warranted and the court accepted that conclusion without question. 

The court also upheld the agency's reliance on uncertain population models that do not reflect actual observed conditions.  This has the unfortunate effect of authorizing the listing of a species based entirely on admittedly inaccurate forecasts.  Whereas the Endangered Species Act requires all listings to be based on "best available science" this decision sets the bar at a new low.  According to the court, "best available science" includes the most speculative of projections. 

This is bad law and bad science.  Pacifc Legal Foundation is considering its options for appeal.    

For more information on this case, check our website.       

 

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