In a decision with strong overtones for climate policy and federal permitting of projects that release greenhouse gases, the U.S. Court of Appeals for the D.C. Circuit today affirmed the U.S. Fish & Wildlife Service's ("FWS") decision to list the polar bear under the Endangered Species Act ("ESA"). The FWS decision, which is based on the danger to polar bear populations caused by declining sea ice in the Arctic, is one of the first major federal policies to address the consequences of climate change. Further, the decision means that projects releasing major quantities of greenhouse gas emissions may run afoul of the ESA, and that consultation with FWS under the ESA may become a routine regulatory requirement for such projects.
Legally, the decision is rather unremarkable. The petitioners, a group of industries, states, and aligned interests, challenged the FWS's listing decision on a number of technical grounds. But, as the D.C. Circuit observed, the challenges amount to "nothing more than competing views about policy and science." Under the familiar "arbitrary and capricious" standard of review for decisions of administrative agencies, such disagreements are insufficient to overturn an agency decision. Rather, as long as the agency has considered all the evidence, adequately explained its decision, and acted within the law, its decision, even if controversial, is not arbitrary and capricious. The D.C. Circuit concluded that the FWS did not act arbitrarily in the face of numerous challenges to its listing decision.
The litigation was initiated by the Center for Biological Diversity, which, in 2005, filed a petition with the FWS seeking to list the polar bear under the ESA. After a three-year process, the FWS in 2008 found that, because of climate change, the polar bear is likely to face extinction within the foreseeable future, and therefore listed the bear as a "threatened" species. Groups from across the spectrum challenged the listing. Environmental groups argued that the polar bear should have been listed as "endangered." Industry and aligned groups, on the other hand, argued that the FWS erred in listing the bear under any ESA category.
In 2011, the U.S. District Court for the District of Columbia rejected all challenges, concluding that the FWS had properly justified its decision to list the polar bear as "threatened." A group of industries, states, and aligned groups then appealed the District Court's decision, while environmental groups intervened to support the FWS listing. Today, the D.C. Circuit unanimously rejected the appeal. As noted above, six of the seven grounds argued on appeal involved specific challenges to the evidence or reasoning of the FWS.
The seventh issue, raised on appeal by the State of Alaska, involves the ESA's procedural requirements and therefore bears separate mention. Under Section 4(i) of the ESA, the FWS is required to provide "a written justification for [its] failure to adopt regulations consistent with" a state's comments or petition. Alaska argued that the FWS violated this provision because it listed the polar bear despite Alaska's comments objecting to the listing. The Court rejected this argument, as well, concluding that the FWS had adequately addressed each of Alaska's objections in writing, and that Section 4(i) requires only such a written explanation. It does not impose any substantive requirement on FWS to adopt the position advocated by a state.
It is, of course, possible that the petitioners will seek review of this decision in the Supreme Court. A petition for writ of certiorari would be due within sixty days of today's decision.
If you have any questions about the D.C. Circuit's opinion, the ESA, the polar bear listing, or its implications for projects that could release greenhouse gases, please contact a member of GTH's Energy, Telecommunications, and Utilities practice group or Environment & Natural Resources practice group. These practice groups are consistently recognized as among the best, both nationally and in the Pacific Northwest.