April 17, 2013

The polar bear saga continues …

By M. Reed Hopper Senior Attorney

Regular readers of this blog know that we challenged the listing of the polar bear as a “threatened” species.  We outlined the basis for that challenge on several occasions. In a nutshell, when the bear was listed, the Secretary of Interior said the listing would not, and could not, address the primary risk to the polar bear–melting sea ice.  In addition, the agency has identified no decline in overall polar bear populations and even the agency’s worse case predictions show that polar bears will still maintain a viable population in the foreseeable future.  Given these facts, our suit is designed to compel the U.S. Fish and Wildlife Service to explain why the polar bear is “threatened” now.  The only answer forthcoming is that habitat is shrinking and at some time in the future the bears will be adversely affected.  This is not in dispute.  But this is not sufficient to satisfy the law.  Under the law, the agency must show when it is likely that the species will be on the brink of extinction throughout a significant portion of its range.  The agency has not done so. Nevertheless, the trial court and the D.C. Circuit Court did not require the agency to provide this explanation.  So, we took the next step.  This week, we filed a petition for rehearing in the D.C. Circuit.  If that is not successful, we will be petitioning the U.S. Supreme Court.  Stay tuned!

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