Endangered Species Law & Policy

In a decision that underscores the regulatory importance of recovery plans, the United States District Court for the District of Columbia invalidated the delisting of the Virginia northern flying squirrel on the grounds that the delisting rule modified delisting criteria in the recovery plan for the squirrel. Friends of Blackwater v. Salazar No. 09-2122 (D.D.C. March 25, 2011). The Court concluded that the Service violated section 4(f) of the Endangered Species Act (ESA) (requiring notice and comment on recovery plans) by relying on criteria to support delisting that varied ...

The New York Times recently reported that, in an effort to offset the rising costs associated with the review of federal listing petitions, which must be acted on pursuant to statutorily mandated deadlines set forth in the federal Endangered Species Act ("ESA"), the U.S. Fish and Wildlife Service ("Service") has requested that Congress impose a cap on funds that can be spent responding to ESA listing petitions.  (The New York Times, 3/24/2011, by Lawrence Hurley.)  In the past, environmental groups have been quick to challenge the Service's failure to ...

The Ninth Circuit Court of Appeals held that the regulation of water deliveries from the State Water Project and Central Valley Project to protect the threatened delta smelt did not violate the Commerce Clause of the United States Constitution.  San Luis & Delta-Mendota Water Authority v. Salazar, No. 10-19152 (9th Cir. March 25, 2011). 

The decision is the latest in a series of decisions by the federal appellate courts rejecting Commerce Clause challenges to the Endangered Species Act (ESA). The court concluded that the protection of endangered and threatened species (including ...

The United States Fish & Wildlife Service (Service) has reached an agreement with the majority of the plaintiffs, including the Defenders of Wildlife, the Greater Yellowstone Coalition, and eight other conservation organizations, to settle ongoing litigation over a Federal District Court’s 2010 decision (pdf) to reinstate Endangered Species Act (ESA) protections for the Rocky Mountain gray wolf.

The proposed settlement allows the Service to temporarily return management of the recovered wolf populations in Idaho and Montana to the states, while continuing efforts to ...

The United States District Court for the District of Columbia upheld a decision by the Fish and Wildlife Service to exclude an area from the designation of critical habitat for the endangered Cape Sable seaside sparrow in Florida.  Center For Biological Diversity v. Salazar (D.D.C. Mar. 16, 2011) (PDF).  While conceding that the excluded area was essential to the sparrow’s conservation, the Service decided not to designate the area as critical habitat, in part, because of the conflict between critical habitat and the Comprehensive Everglades Restoration Project. 

The court ...

On March 13, 2011, it was reported that the U.S. Fish and Wildlife Service (Service) is authorized to prepare a new proposed rule and proposed critical habitat for the Gunnison sage-grouse (Centrocercus minimus). This news follows a September 27, 2010 decision (PDF) by the Service that, although the Gunnison sage-grouse warrants protection under the Endangered Species Act (ESA), protection would be delayed while the Service addressed the needs of other high priority species.

The Gunnison sage-grouse is a small ground bird with speckled plumage and an ornate mating ritual ...

The Fish and Wildlife Service, proposed (PDF) today to designate critical habitat for the Chiricahua leopard frog (Lithobates chiricahuensis) under the Endangered Species Act (ESA).  In addition, because of a taxonomic revision of the Chiricahua leopard frog, the Service is reassessing the status of and threats to the species.

The Service proposed designation of approximately 11,136 acres as critical habitat (PDF) for the species.  The proposed critical habitat is located in Apache, Cochise, Gila, Graham, Greenlee, Pima, Santa Cruz, and Yavapai Counties, Arizona; and Catron ...

The U.S. Fish and Wildlife Service has announced it will accept comments through April 9, 2011 regarding a status review of the longfin smelt (Spirinchus thaleichthys).  In a press release (pdf) announcing that the Service is now accepting comments, the Service states that, based on the status review, it will issue a final 12-month finding by September 30, 2011, that will address whether the listing may be warranted under the Endangered Species Act (ESA).  The Service has twice previously made determinations not to list the species under the ESA, most recently in a determination

As explained in a previous posting, in November 2010, the U.S. Fish and Wildlife Service designated 187,157 square miles of land in, and sea ice adjacent to, Alaska as critical habitat for polar bear.

Shortly after the final rule was published in the Federal Register, the Alaska Oil and Gas Association (AOGA) sent a sixty-day notice of intent to sue (PDF) the Service, alleging that the designation violates the Endangered Species Act (ESA).

Making good on its notice, on March 1, 2011, AOGA filed a complaint (PDF) in federal court seeking to invalidate the designation, which the trade ...

On March 2, 2011, the U.S. Fish and Wildlife Service (Service) completed its formal review of the status of the eastern cougar (Felis concolor couguar) and concluded that the subspecies is extinct.  The existence of the subspecies, listed since 1973, has long been questioned.  Dr. Mark McCollough, the Service's lead scientist for subspecies, noted that the eastern cougar has likely been extinct since the 1930s.  Though sightings had been reported, the Service believes they are not of the eastern cougar.  Rather, the Service believes that the sightings were actually of South ...

On March 2, 2011, the United States Court of Appeals for the Fourth Circuit held that a biological opinion issued by the National Marine Fisheries Service ("Service") regarding the Environmental Protection Agency's ("EPA") reregistration of pesticides is immediately reviewable under the Administrative Procedure Act, reversing a lower court decision.  Dow Agrosciences LLC v. National Marine Fisheries Service, Case No. 09-1968 (pdf). 

The Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") establishes specific requirements prior to EPA's registration ...

On February 25, the United States District Court for the Eastern District of California entered a stipulated order (pdf) establishing operational criteria for the Central Valley Project and State Water Project through June 30, 2011, in lieu of the Reasonable and Prudent Alternative prescribed by the U.S. Fish and Wildlife Service 2008 biological opinion (pdf) regarding the effects of the Water Projects on delta smelt.  The settlement that led to the order received widespread media attention, including this story by Reuters.  The memorandum decision of the court holding that ...

The U.S. Supreme Court has denied (pdf) two petitions that sought to have the Court resolve a Circuit split regarding the evaluation of economic impacts of critical habitat designations under the federal Endangered Species Act.  The Court’s action leaves in place two recent decisions by the United States Court of Appeals for the Ninth Circuit upholding the use of the so-called baseline methodology by the U.S. Fish and Wildlife Service ("Service").  Under the baseline methodology, the Service restricts the evaluation of economic impacts of a potential critical habitat ...

The Department of Fish and Game (DFG) is now accepting comments on a proposal to add northern and southern variants of the mountain yellow-legged frog to the endangered species list under the California Endangered Species Act ("CESA"). The proposal comes as a result of a petition by the Center for Biological Diversity submitted in 2010.  Comments received on the proposal by March 18, 2011 will be included in a status evaluation report that DFG plans to submit to the Fish and Game Commission ("Commission") addressing existing threats to the species and the effectiveness of current ...

The U.S. House of Representatives passed H.R. 1 (pdf), a spending bill, on February 19, 2011, that includes a rider to foreclose use of funds appropriated by Congress to implement Reasonable and Prudent Alternatives (RPAs) developed by the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) to accompany biological opinions and jeopardy determinations made by those agencies under the federal Endangered Species Act regarding the ongoing operation of the Central Valley Project and State Water Project in California.  The biological opinions ...

On February 11, 2011, the United States District Court for the District of New Mexico approved a stipulated settlement agreement (pdf) between the Federal Emergency Management Agency ("FEMA") and WildEarth Guardians, obligating FEMA to, among other things, request that the U.S. Fish & Wildlife Service ("Service") initiate formal consultation on the impacts of the National Flood Insurance Program (the "NFIP") in New Mexico.

The NFIP, which is administered by FEMA, enables property owners in participating communities to purchase flood insurance at a subsidized ...

The Fish and Wildlife Service (Service) recently announced  (pdf) a proposed rule to reclassify the wood bison (Bison bison athabascae) from endangered to threatened under the Endangered Species Act (ESA). After completing a 12-month status review, the Service found that threats still affect the wood bison, with the largest threat being the loss of habitat caused by agricultural development, the presence of diseased wood bison and cattle herds on habitat that could be restored with disease-free herds, and the commercial production of plains bison in historical wood bison ...

On February 10, 2011, EPA Region 9 issued an Advanced Notice of Proposed Rulemaking for Water Quality Challenges in the San Francisco Bay/Sacramento-San Joaquin Delta Estuary ("Advanced Notice") (pdf).  EPA is not proposing any specific Clean Water Act ("CWA") rulemaking at this time.  Instead, EPA proposes to assess "the effectiveness of current programs designed to protect water quality and aquatic species habitat in the San Francisco Bay / Sacramento-San Joaquin Delta in California . . . ."  Fact Sheet (pdf).  According to EPA Region 9 Administrator Jared ...

The Fish and Wildlife Service (Service) announced (PDF) that despite a finding (PDF) that sufficient scientific and commercial data exist to warrant protecting the Pacific walrus under the Endangered Species Act ("ESA"), an official rulemaking to propose that protection will be postponed because of the need to address other higher priority species.  Instead, the Service will review the walrus’ status as a candidate species annually.  The finding confirms claims made by the federal Marine Mammal Commission and a petition by the Center for Biological Diversity that the ...

On February 7, the Fish and Wildlife Service issued a press release announcing a new final rule designating critical habitat for the arroyo toad (Anaxyrus californicus).  The rule (pdf) designates about 98,366 acres of land as critical habitat ranging from portions of Santa Barbara County in the north to San Diego County in the south.  By comparison, the prior final rule, available here (pdf), designated about 11,695 acres of land as critical habitat.  The Service excluded approximately 11,697 acres of land subject to final habitat conservation plans, tribal lands ...

In a letter to the President's Council on Environmental Quality (CEQ), 18 members of Congress urged the Obama Administration to "ensure that NMFS, EPA, the Department of the Interior, USDA, and DOJ work together" to strengthen the modeling and to use the best scientific and commercially available information to re-evaluate existing biological opinions (BiOps) and to inform forthcoming BiOps for EPA pesticide registrations.

The members of Congress claim that the existing BiOps, which prohibit the application of certain pesticides to cropland within certain buffer zones adjacent to streams, rivers, wetlands, and floodplain habitat to protect threatened and endangered salmon and steelhead, "will force family farmers out of business and devastate rural communities and trade throughout the districts we represent, while crippling our food production capacity for the foreseeable future."  According to the authors, the BiOps issued to date expand existing buffer zones to such a great extent that "it would affect millions of acres in the Northwest and California, including a staggering 61 percent of farmland in Washington state and 55 percent in Oregon."

The 18 members of Congress argue that the consultation process between the National Marine Fisheries Service (NMFS) and EPA for the first of the pesticide BiOps (issued in November 2008) was flawed because it lacked transparency, consultation with the agricultural community, and the opportunity for public comment.  More fundamentally, they argue that NMFS's consultation for all three of the existing BiOps ignored the best available scientific and commercial data on the prevalence of the pesticides in salmon spawning waterways.

The letter's authors cite a September 2008 letter from EPA's Director of Pesticide Programs to NMFS, which criticized the July 31, 2008 draft BiOp for failing to disclose NMFS's rationale for its determination that use of chlorpyrifos, diazinon, and malathion will jeopardize the continued existence of dozens of listed salmonids in California, Oregon, Washington, and Idaho.  In the September 2008 letter, EPA also complained that it could not meaningfully discuss the proposed Reasonable and Prudent Alternative because the BiOp "fails to identify a level of exposure to these pesticides that would not result, in NMFS['s] opinion, in jeopardy to the species."

As explained in more detail below, the letter's authors are especially concerned that the administration orchestrate future interagency consultations as well as consultations with the agriculture industry and other stakeholders because EPA faces a host of other court-mandated deadlines to determine whether other pesticide registrations may affect listed species, and if so, to consult.

On February 2, 2011, the United States District Court for the Northern District of California approved a settlement agreement (pdf) between the U.S. Fish & Wildlife Service ("Service"), the Center for Biological Diversity, and The Bay Institute, obligating the Service to reconsider the status of the longfin smelt (Spirinchus thaleichthys), including the San Francisco Bay-Delta population.  Under the terms of the settlement, the Service must conduct a rangewide review of the species and issue a new listing determination by September 30, 2011.

The ...

The February 2011 edition of Environmental Management includes an article I co-authored with Dr. Dennis Murphy entitled, The Route to Best Science in Implementation of the Endangered Species Act’s Consultation Mandate: The Benefits of Structured Effects Analysis.  The principle purpose of the article is to facilitate the development of rigorous effects analyses under the consultation provisions in section 7(a)(2) of the Endangered Species Act (ESA).  In the article, we "assess effects analysis as a tool for using best science to guide agency decisions under the Act ...

On January 20, 2011, the Federal Emergency Management Agency ("FEMA") proposed (pdf) to settle another lawsuit challenging its implementation of the National Flood Insurance Program ("Program"), agreeing to consult with the U.S. Fish & Wildlife Service and National Marine Fisheries Service (the "Wildlife Agencies") regarding the Program's potential impacts on five species of sea turtles listed under the federal Endangered Species Act. 

The Program, which is administered by FEMA, enables property owners in participating communities to purchase flood insurance ...

The Fish and Wildlife Service (Service) is facing a court-ordered January 31 deadline to decide whether to propose recommending the Pacific walrus for the endangered species list under the Endangered Species Act (ESA). Earlier this month, the federal Marine Mammal Commission (Commission) issued a letter (PDF) to the Service recommending that it list the species as threatened. The Commission, which oversees marine mammal conservation policies carried out by federal regulatory agencies, cited loss of sea ice habitat as the most significant threat to the species’ ...

The U.S. Fish and Wildlife Service (Service) recently announced that it will conduct in-depth status reviews for six California species currently listed as threatened or endangered under the Endangered Species Act (ESA). The Service published (PDF) a 90-day finding in the Federal Register on January 19, 2011, concluding that a petition filed by Pacific Legal Foundation presented substantial scientific information indicating that delisting or reclassifying the species was warranted.

Pacific Legal Foundation petitioned the Service to delist the Eureka Valley evening ...

The Fish and Wildlife Service (Service) announced this week that it has opened a 30-day comment period on revisions to the proposed critical habitat designation for the Sonoma County Distinct Population Segment of the California tiger salamander, and the associated draft economic analysis of the revised proposal. The Service previously revised the proposed critical habitat designation in August 2009 -- after originally proposing the designation in August 2005 -- based on a settlement agreement on the August 2005 proposal. In this week’s notice of availability (PDF ...

On January 18, 2011, after slightly more than a quarter-century of protection, the U.S. Fish & Wildlife Service ("Service") announced that it will be removing the Maguire daisy (Erigeron maguirei) from the list of threatened and endangered species.  The Service recently concluded that the daisy population, which in 1985 consisted of only seven known plants, is presently comprised of over 162,000 individual plants, and "no longer meets the definition of endangered or threatened under the Endangered Species Act of 1973."  The Maguire daisy is just the 21st species that ...

On January 8, 2011, a federal district court overruled (pdf) a 2008 decision by the U.S. Fish and Wildlife Service (Service) to reduce the acreage of critical habitat designated for the San Bernardino kangaroo rat from 33,290 acres to 7,779 acres. The Service had initially designated the 33,290 acres in 2002, but decreased the amount (pdf) in 2008 after a lawsuit successfully challenged the designation. The district court’s ruling reinstates the area designated as critical habitat in the 2002 rule (pdf) in San Bernardino and Riverside counties until a revised designation is ...

On December 22, 2010, the Department of Justice filed a supplemental brief (PDF) in the United States District Court for the District of Columbia explaining the guidelines used by the Fish and Wildlife Service (FWS) in deciding if a species should be listed as threatened or endangered under the Endangered Species Act (ESA).  The brief was filed in response to the court's request for a further explanation (PDF) regarding why FWS listed the polar bear as a threatened, and not an endangered, species.  Environmental groups had filed suit arguing the polar bear should be listed as ...

Aiming to restore federally-listed species, whose long-term viabilities in the Florida Keys are currently threatened by predation from non-native species and human-subsidized populations of native predators, the Fish and Wildlife Service has prepared a draft Integrated Predator Management Plan/Environmental Assessment (Plan/EA) (PDF), which it made available for public comment today on its website.  The Service claims that predation by the domestic cat and other exotic non-native species has impacted populations of natives species in the Florida Keys Wildlife Refuges ...

On December 14, 2010, the U.S. Fish & Wildlife Service published its final rule (PDF) redesignating critical habitat for the Santa Ana sucker, a small fish species occurring in watershed draining the San Gabriel and San Bernardino mountains of southern California.  The Final Rule designates a total of 9,931 acres across San Bernardino, Riverside, Los Angeles, and Orange counties and is comprised of 7,097 acres in the Santa Ana River, 1,000 acres in the San Gabriel River, and 1,233 acres in Big Tujunga Creek.  The Final Rule increased the sucker’s net critical habitat by ...

On December 14, 2010, the United States District Court for the Eastern District of California issued a 225 page decision (pdf) granting in part plaintiffs' motions for summary judgment in The Consolidated Delta Smelt Cases, No. 09-407 (E.D. Cal. Dec. 14, 2010).  The matter consists of five consolidated actions that all challenge the December 2008 biological opinion, jeopardy and adverse modification determinations, and reasonable and prudent alternative (RPA) for continued operation of the Central Valley Project (CVP) and State Water Project (SWP) issued by the Fish and ...

The United States Court of Appeals for the Ninth Circuit, in Wild Fish Conservancy v. Salazar, issued a decision (pdf) remanding a 2008 biological opinion for the operation of a hatchery for spring-run Chinook salmon to the U.S. Fish and Wildlife Service (Service).  At issue in the biological opinion was the ongoing operation of the hatchery and its effects on the threatened bull trout due to the presence of a number of barriers to fish passage in Icicle Creek, which is in the Columbia River watershed.  The Service issued the biological opinion following intra-agency consultation, since ...

Introduced by eight U.S. Representatives, HR 6485 (.pdf) provides that the inclusion of the gray wolf on any list of endangered or threatened species under Section 4 of the Endangered Species Act (ESA) will have no force or effect. Titled the State Sovereignty Wildlife Management Act, the bill is one of several (see SB 3825 (.pdf) and SB 3864 (.pdf)) that has been introduced over the past few months with the goal of returning wolf management to the states. The proposed legislation is meant to improve the balance of both wolf and prey populations by allowing individual states to develop ...

On November 24, 2010, the U.S. Fish and Wildlife Service announced a final rule (PDF) designating 187,157 square miles of on- and off-shore habitat in northern Alaska as critical habitat for two populations of polar bear listed as threatened under the Endangered Species Act. 

The Service originally proposed to designate 200,541 square miles of critical habitat.  However, the final designation removed land that turned out to lie beyond the U.S. territorial waters, five U.S. Air Force (USAF) radar sites, the Native communities of Barrow and Kaktovik, and all existing man-made ...

On November 30, 2010, the United States Fish and Wildlife Service ("Service") designated approximately 783 acres of land in Riverside and San Diego Counties, California, as critical habitat for the plant San Diego ambrosia (Ambrosia pumila).  This is approximately 329 acres less than the Service had previously proposed.  The Service's designation excluded approximately 118 acres of critical habitat that fell within the Western Riverside County Multiple Species Habitat Conservation Plan.  In its final economic analysis, the ...

On November 23, 2010, in Humane Society of the United States v. Locke, the U.S. Court of Appeals for the Ninth Circuit held (pdf) that NMFS violated the Marine Mammal Protection Act (MMPA) by failing to adequately explain its finding that sea lions are having a significant negative impact on the decline or recovery of salmonid species listed under the Endangered Species Act (ESA) in the Columbia River. The ruling invalidated NMFS’s decision authorizing the states of Washington, Oregon, and Idaho to lethally remove California sea lions from the Bonneville Dam area. The 2008 decision

Following the release of an incomplete draft of the Bay Delta Conservation Plan (BDCP), numerous stakeholders issued statements outlining their perspective on the status of the planning effort.  Statements were issued by a number of public water agencies that have provided most of the funding for the planning effort to date including Westlands Water District (pdf), Kern County Water Agency (pdf), Metropolitan Water District (pdf), and the State Water Contractors (pdf).  They were also released by other interested stakeholders, such as the Bay Institute and Environmental ...

The Bay Delta Conservation Plan (BDCP) is a long-term conservation strategy designed to improve the status of species and natural communities covered by the plan and provide the basis for the issuance of endangered species permits for the operation of the state and federal water projects in California.  For a number of years, federal and state agencies, numerous public water agencies, and non-governmental organizations have worked to develop the BDCP.  On November 18, an incomplete draft of the BDCP was released to the public amid controversy as reported by numerous news outlets ...

The National Research Council (NRC) announced the formation of an ad hoc panel to review the Bay Delta Conservation Plan (BDCP).  The NRC explains that "[t]he panel’s review will be related to but be conducted separately from the on-going, more broadly focused NRC study entitled 'Sustainable Water and Environmental Management in the California Bay-Delta.'"  Provisional appointments to the panel, including Dr. Henry J. Vaux of the University of California, Berkeley as Chair, are provided here.  There is a 20 day public comment period on the appointees that commenced on ...

The Fish and Wildlife Service recently published an updated list of plant and animal species native to the United States that are candidates for listing as threatened or endangered species under the Endangered Species Act.  The list, referred to as a Candidate Notice of Review or CNOR, is published periodically by the Service.  A press release announcing the release of the CNOR is available here.  Each species on the list is assigned a listing priority number (or LPN) based on its status and threats.  The CNOR includes five new candidates, changes the LPN for four existing candidates, and ...

In 2008, the National Oceanic & Atmospheric Administration ("NOAA") authorized Washington, Oregon, and Idaho to "lethally remove" individual sea lions that congregate below the Bonneville Dam and continue to eat listed salmon and steelhead after non-lethal deterrence methods prove unsuccessful.  Under the current program, after a sea lion is identified and trapped it is either transported to a new location or euthanized.  Earlier this month, however, a task force convened at NOAA's request recommended that the controversial program ...

On October 29, 2010, the Quechan Tribe of the Fort Yuma Indian Reservation filed a complaint (pdf) in the U.S. District Court for the Southern District of California against the U.S. Department of the Interior and its Bureau of Land Management (BLM) for actions approving a 709-megawatt solar project in the Imperial Valley between Octotillo and El Centro in southern California. The complaint challenges the BLM’s final approval of Tessara’s (formerly Sterling Energy Systems) 6,144-acre Imperial Valley Solar Project on BLM land under the Federal Lands Policy and Management ...

In a decision that could have profound implications for listing decisions under the Endangered Species Act, on November 4, 2010, the U.S. District Court for the District of Columbia remanded (PDF) the Polar Bear Listing Rule to the Fish & Wildlife Service for "additional explanation for the legal basis of its listing determination" that the Polar bear is a "threatened" not "endangered" species.

In essence, the court has asked the Fish & Wildlife Service to provide the court with its agency interpretation of "endangered species."  As previously discussed here, the Fish & ...

On November 2, 2010, the U.S. Fish and Wildlife Service (FWS) listed (PDF) the Georgia pigtoe mussel, the interrupted rocksnail and the rough hornsnail as endangered under the Endangered Species Act (ESA) and designated 160 miles of stream and river channels as critical habitat for the three species in Georgia, Alabama and Tennessee.
The listing followed FWS’s determination that the species have experienced a significant curtailment in their freshwater habitats. FWS attributes the habitat loss to fragmentation and isolation of free-flowing rivers and tributaries, as well as ...

On October 18, 2010, Idaho Governor Butch Otter announced the State of Idaho would no longer manage wolves as a designated agent under the Endangered Species Act.  According to the Idaho Department of Fish and Game website, a January 2006 agreement between Idaho and the U.S. Department of the Interior designated the State as an agent for day-to-day wolf management for the Fish and Wildlife Service, but efforts to renew the agreement were unsuccessful.  In response to the Governor's action, the Service issued a press release (pdf) indicating it would once again be the lead agency for ...

The U.S. Fish and Wildlife Service (Service) published a proposed rule (PDF) this week to reclassify the spikedace and loach minnows from threatened to endangered under the federal Endangered Species Act (ESA). The proposed rule also designates approximately 796 miles of streams and rivers in central and eastern Arizona and western New Mexico as critical habitat for the two fish.

Both the spikedace and the loach minnow are small fish that measure fewer than three inches in length. They inhabit shallow water in perennial streams. According to the Service, prolonged drought ...

The National Marine Fisheries Service (NMFS) has denied protection for spotted seal populations in Alaskan waters.   NMFS did, however, formalize protection for smaller populations of spotted seals in Liaodong Bay, China and Peter the Great Bay, Russia.  This region is home to a population of approximately 3,300 seals.

On October 20, 2010, at a hearing on a motion for summary judgment filed by Greenpeace, Natural Resources Defense Council, and the Center for Biological Diversity, a federal judge indicated that he intends to remand to the Fish & Wildlife Service its controversial decision to list the Polar bear as a threatened species rather than an endangered species.   See Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation, No. 1:08-mc-00764-EGS (D.D.C. filed Dec. 4, 2008).

The U.S. Fish & Wildlife Service made history two years ago when it listed the Polar bear as a threatened species because it identified the devastating impacts of climate change on the bear's habitat as a major factor in the species' alarming decline.  In addition, the Polar Bear is the first, and so far, only mammal to be listed specifically due to climate change impacts.

Environmentalists had hoped that the listing would force the federal government to use its considerable regulatory authority under the Endangered Species Act to impose strict limits on emissions of greenhouse gases (GHGs).  But a controversial rule issued by the Department of the Interior under Section 4(d) of the Endangered Species Act placed strict geographic limits on the authority of federal agencies to require projects in Alaska to curb or mitigate their GHG emissions.  As previously reported here, much to the dismay of environmentalists, the Department of the Interior under the Obama Administration chose not to overturn the polar bear rule.  Instead, the Obama Administration has called for new legislation to address GHG emissions, and the EPA may use its authority under the Clean Air Act to regulate GHGs.

Environmentalists immediately challenged the Polar Bear Listing Rule, arguing that the species should be listed as endangered, not threatened.  If they prevail on that issue, and the bear attains endangered status, then the Department of the Interior will no longer have the power to issue a 4(d) rule for the Polar bear.  Without the limits in the existing 4(d) rule, the wildlife agencies could, in theory, impose limits on GHG emissions from facilities and projects that receive discretionary federal funding or approvals anywhere in the country based on their impacts on climate change, which impacts the Polar bear.

The environmental plaintiffs have also challenged the validity of the 4(d) rule itself.  Thus, if the Polar Bear Listing Rule is ultimately upheld, their challenge to 4(d) rule will remain to be decided in subsequent proceedings.