Endangered Species Law & Policy

As we previously reported, on October 17, 2011, the U.S. District Court for the District of Columbia held that the Fish & Wildlife Service (Service) violated the National Environmental Policy Act (NEPA) by issuing a rule under section 4(d) of the Endangered Species Act (ESA) regarding take of the threatened Polar bear (Ursus maritimus) (Special Rule) without conducting an environmental assessment.  As we discussed here, the Special Rule sets forth those measures and prohibitions the Secretary of Interior deems necessary and advisable for the conservation the polar bear, but it has the effect of specifically prohibiting the federal government from using the polar bear's threatened status to regulate GHG emissions of activities that occur outside the polar bear’s range.

On November 18, 2011, the court remanded (PDF) the Special Rule to the Service for the preparation of an environmental assessment (EA) and new rulemaking determination.  The court set a deadline of April 13, 2012 for the Service complete a draft EA and to submit a notice of availability of the draft EA and proposed special rule to the office of the Federal Register for publication.  The Service has until December 6, 2012 to complete a final EA and final rulemaking determination and to submit a notice to the Federal Register for publication regarding the availability of those documents. 

The Interim Final Special Rule (PDF) is reinstated and effective until the new special rule for the polar bear becomes effective.