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.