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In Re Polar Bear Endangered

October 17, 2011

IN RE POLAR BEAR ENDANGERED SPECIES ACT LISTING AND § 4(D) RULE LITIGATION


The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

This Document Relates To:

Ctr. for Biological Diversity *fn1 et al. v. Salazar, et al., ) No. 08-2113; Defenders of Wildlife v. U.S. Dep't of the ) Interior, et al., No. 09-153

MEMORANDUM OPINION

On May 15, 2008, the U.S. Fish and Wildlife Service ("the Service" or "the agency") published its final rule listing the polar bear as a threatened species under the Endangered Species Act ("ESA"). See Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range, 73 Fed. Reg. 28,212 (May 15, 2008) ("Listing Rule"). This Court recently upheld the Listing Rule as a reasonable exercise of agency discretion. See generally In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation, Misc. No. 08-764, 2011 U.S. Dist. LEXIS 70172 (D.D.C. June 30, 2011) [hereinafter In re Polar Bear]. The two cases currently before the Court arise from a related agency rule, Special Rule for the Polar Bear, 73 Fed. Reg. 76,249 (December 16, 2008) ("Special Rule"), which specifies the protective mechanisms that apply to the polar bear as a result of its threatened status.

Section 4(d) of the ESA requires the Service to promulgate such rules as it deems "necessary and advisable to provide for the conservation of [threatened] species." 16 U.S.C. § 1533(d). Although the polar bear is already regulated in the United States under the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. §§ 1361-1423h, as well as treaties and other international agreements, the Service determined that it is nonetheless necessary and advisable for the conservation of the species to extend additional ESA protections to the polar bear, pursuant to Section 4(d). Among other things, the Service's Special Rule aims to address the threat of direct impacts to individual bears and their habitat from oil and gas exploration and development activities within the species' current range.

The plaintiffs in this case have challenged the agency's Special Rule for the polar bear under the ESA, 16 U.S.C. §§ 1531-1544; the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370h; and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-559, 701-706. Pending before the Court are the parties' cross-motions for summary judgment. Plaintiffs claim, first, that the Service's Special Rule violates the ESA because it fails to provide for the conservation of the polar bear. Specifically, plaintiffs contend that the Service cannot effectively provide for the conservation of the polar bear without addressing global greenhouse gas emissions, which the agency itself identified as the cause of increasing Arctic temperatures that are expected to lead to a significant decline of the polar bear's sea ice habitat. Plaintiffs argue that the Service purposely and unlawfully crafted its Special Rule in such a way as to avoid addressing this threat, in contravention of the ESA's conservation mandate.

The Court understands plaintiffs' frustration. However, as this Court has previously observed, climate change poses unprecedented challenges of science and policy on a global scale, and this Court must be at its most deferential where the agency is operating at the frontiers of science. See In re Polar Bear, 2011 U.S. Dist. LEXIS 70172, at *9-11. Here, the Service concluded based on the evidence before it that Section 4(d) of the ESA is not a useful or appropriate tool to alleviate the particular threat to the polar bear from climate change caused by global greenhouse gas emissions, and plaintiffs have offered no compelling evidence to the contrary. Although the Court is sensitive to plaintiffs' arguments for a strong mechanism to combat the effects of global climate change, the Court finds that the agency's conclusion was not arbitrary, capricious, or contrary to law. The Court is therefore prohibited from substituting either the plaintiffs' or its own judgment for that of the agency. The question before the Court, then, is whether the Service reasonably concluded that its Special Rule provides for the conservation of the polar bear even if it does not reverse the trend of Arctic sea ice loss. As will be discussed below, the Court is persuaded that the agency has done so. Accordingly, with respect to plaintiffs' ESA claim, the Court DENIES plaintiffs' motion for summary judgment and GRANTS the federal defendants' and defendant-intervenors' motions for summary judgment.

In addition to their claims under the ESA, plaintiffs claim that the Service violated NEPA by failing to analyze the potential environmental impacts of its Special Rule, which is generally required for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(c). With respect to this claim, the Court agrees with plaintiffs. The Court declines to recognize the broad NEPA exemption that the federal defendants urge.

Accordingly, and for the reasons discussed below, the Court finds that the Service was required to conduct at least an initial assessment to determine whether its Special Rule for the polar bear warranted a full "environmental impact statement" ("EIS"). Here, the Service conducted no analysis whatsoever; as a result, its Special Rule for the polar bear violates NEPA. Accordingly, with respect to plaintiffs' NEPA claim, the Court GRANTS plaintiffs' motion for summary judgment and DENIES the federal defendants' and defendant-intervenors' motions for summary judgment. The Court finds that vacatur of the final Special Rule is the appropriate remedy for the Service's NEPA violation. Upon vacatur of the final Special Rule, the prior May 15, 2008, interim final Special Rule for the polar bear shall remain in effect until further Order of the Court.

I. BACKGROUND

A. Statutory and Regulatory Background

1. ESA

Congress enacted the ESA "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species."

16 U.S.C. § 1531(b). The ESA further defines "conservation" as "the use of all methods and procedures which are necessary to bring any endangered species or threatened species back to the point at which the measures provided are no longer necessary." Id. § 1532(3). An "endangered species" is "any species which is in danger of extinction throughout all or a significant portion of its range." Id. § 1532(6). A "threatened species" is "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range."*fn2 Id. § 1532(20).

Under the conservation program established by the ESA, a designation of "endangered" triggers a broad range of legal protections. Most relevant to this case is the general prohibition on "taking" any endangered species, which is set forth in Section 9 of the ESA.*fn3 See id. § 1538(a)(1). The ESA defines the term "take" to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct." Id. § 1532(19). By regulation, the Service has further defined "harm" to mean "an act which actually kills or injures wildlife." 50 C.F.R. § 17.3. Such acts may include "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering." Id.

Section 10 of the ESA creates exceptions to the general rule against taking endangered species. Specifically, the Secretary may issue permits authorizing the taking of endangered species if such taking is "incidental to, and not the purpose of, the carrying out of an otherwise lawful activity." 16 U.S.C. § 1539(a)(1)(B).

The ESA does not prohibit the taking of threatened species. However, Section 4(d) of the ESA provides:

[W]henever any species is listed as a threatened species . . . the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species. The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1), in the case of fish or wildlife. . . .

Id. § 1533(d). Section 4(d) of the ESA thus authorizes the Service to extend any or all of the Section 9 take prohibitions, as well as other necessary protective measures, to any threatened species.

Pursuant to this section, the Secretary of the Interior has issued a general regulation that extends all of the Section 9 take prohibitions to all threatened species. See 50 C.F.R. § 17.31(a). However, this regulation provides that where the agency issues a special rule for a particular species pursuant to Section 4(d), that special rule "will contain all the applicable prohibitions and exceptions" and "none of the provisions of [paragraph (a)] . . . will apply." Id. § 17.31(c). Accordingly, a special rule for a particular threatened species supersedes the general rule that applies to all threatened species.

2. MMPA

The MMPA has governed the management of polar bear populations in the United States since 1972. Congress enacted the MMPA to preserve and replenish marine mammal populations.*fn4

See 16 U.S.C. § 1361(2). The MMPA imposes a general moratorium on the taking and import of marine mammals and marine mammal products. See id. § 1371(a). Under the MMPA, the term "take" is defined as "to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal." Id. § 1362(13).

Like the ESA, the MMPA provides some limited exceptions to its moratorium on taking marine mammals. The Secretary may issue permits authorizing the incidental, but not intentional, taking of a marine mammal while engaging in an otherwise lawful activity, see id. § 1371(a)(5)(A)(i), provided such take "will have a negligible impact" on the species, id. § 1371(a)(5), (D)(i)(I).

3. NEPA

Congress enacted NEPA for two purposes: (1) to inform agency decision-makers of the significant environmental effects of proposed major federal actions and (2) to inform the public so that they "may also play a role in both the decisionmaking process and the implementation of that decision." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). To achieve these goals, NEPA requires every federal agency to prepare an EIS for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). "Major federal actions" are defined by regulation as "new or revised agency rules, regulations, plans, policies or procedures." 40 C.F.R. § 1508.18(a).

An EIS must contain a detailed statement of:

(1) the environmental impact of the proposed action;

(2) any adverse environmental effects that cannot be avoided should the proposed action be implemented;

(3) alternatives to the proposed action;

(4) the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity; and

(5) any irreversible and irretrievable commitments of resources that would be involved in the proposed action should it be implemented.

42 U.S.C. § 4332(2)(C). Among other things, the agency must compare the environmental effects of its proposed action and other reasonable alternatives against a baseline of "no action."

40 C.F.R. § 1502.14(d). In addition, every EIS must be made available for public review and comments, and the agency is required to consider and respond to all comments it receives. Id. § 1503.1, .4.

NEPA's implementing regulations establish guidelines for determining whether and when to prepare an EIS. First, the agency must determine whether the proposed action is the type for which an EIS is normally required or the type for which an EIS is normally not required.*fn5 Id. § 1501.4(a). If the proposed action falls into neither category, the agency must prepare an environmental assessment ("EA"). Id. § 1501.4(b).

An EA is a "concise public document" that serves to "provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement . . ." Id. § 1508.9(a)(1). An EA must include "brief discussions of the need for the proposal, of alternatives [to the proposed action] . . . , of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted." Id. § 1508.9(b). If after preparing an EA the agency determines an EIS is not required and the proposed action will not have a significant effect on the human environment, the agency must issue a Finding of No Significant Impact ("FONSI"). Id. § 1501.4(e); see also id. § 1508.13.

B. Factual and Procedural Background

On May 15, 2008, the Service published its final rule listing the polar bear as a threatened species under the ESA throughout its range. See generally 73 Fed. Reg. at 28,212. Concurrent with the Listing Rule, the agency also published a special rule for the polar bear pursuant to Section 4(d) of the ESA. See generally Special Rule for the Polar Bear, Interim Final Rule, 73 Fed. Reg. 28,306 (May 15, 2008) ("Interim Final Special Rule"); see also AR4D 8104-17.*fn6 The Secretary made this Interim Final Special Rule effective immediately. AR4D 8115. Following a 60-day comment period, on December 16, 2008, the Secretary replaced the Interim Final Special Rule with a substantially similar final rule for ...

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