ESA listing process
Since its enactment in 1973, the ESA has been remarkably successful in preventing the extinction of over 2,000 plant and animal species. Recent research compiled by the Center for Biological Diversity shows that 90 percent of listed species are on track for recovery.
Under the ESA, the U.S. Fish and Wildlife Service (Service) “shall” list any species that the agency finds is “endangered” or “threatened” with extinction. 16 U.S.C. § 1533. A species is “endangered” when it is “in danger of extinction throughout all or a significant portion of its range” and “threatened” when it is “likely to become an endangered species within the foreseeable future.” Id. § 1532(6), (20). In making a listing decision, the Service must consider a number of factors, including “present or threatened” habitat destruction, overutilization of the species, and the inadequacy of existing regulatory mechanisms. Id. § 1533(a)(1). Listing decisions must be made “solely on the basis of the best scientific . . . data available.” Id. § 1533(b).
Once listed, the Act and its implementing regulations offer several key protections. Under section 7 of the ESA, whenever a federal agency takes “any action” that “may affect” a threatened or endangered species, the agency must consult with the Service to determine whether the proposed action is “likely to jeopardize” the species’ continued existence. 50 C.F.R. § 402.14; 16 U.S.C. § 1536(a)(2). If the Service finds the agency’s action is likely to jeopardize the species, the Service must provide the agency with “reasonable and prudent” alternatives that would mitigate the project’s impacts on the listed species or its protected habitat. Id. § 1536(b). Section 9 of the ESA generally prohibits individuals, companies, and the federal government from “taking” an endangered species, including hunting, capturing, or harming a species or its habitat. Id. §§ 1538(a); 1532(19). Section 9 also prohibits the “incidental” take of endangered species, and therefore bars actions that, while not directly intended to take a species, nonetheless harm a species, like logging a species’ habitat or emitting pollution. Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 701 (1995). The statute additionally requires the Service to designate “critical habitat” and formulate a recovery plan for all listed species. 16 U.S.C. § 1533(a)(3), (f). The Service must review the species’ status every five years to evaluate whether extinction risk has escalated. Id. § 1533(c)(2).
Climate change and the polar bear listing
Human-emitted greenhouse gases such as carbon dioxide and methane have already altered the planet’s atmosphere, and the effects of global climate change have been seen nowhere greater than in the Arctic. Average temperatures in the Arctic have risen twice as fast as other regions, with average winter temperatures increasing by 3.6º F since the mid-1960s. Sea ice that once covered vast portions of the north has shrunk drastically, and scientists predict the Arctic could be nearly ice-free by the summer of 2020. Arctic species like polar bears, walruses, and ice seals are highly adapted to and highly dependent on sea ice, which provides a platform for hunting, long-distance movement, mating, and denning.
Recognizing these threats, in February 2005, the Center for Biological Diversity petitioned the Service to list the polar bear as a “threatened” species under the ESA. The filing of an ESA citizen petition triggers a series of statutory deadlines. Specifically, the government must provide an initial response to a citizen petition “[t]o the maximum extent practicable, within 90 days” of receipt, and then, within twelve months of the petition’s receipt, reject the listing, issue a proposal to list the species, or determine that other species’ listings take precedence. 16 U.S.C. § 1533(b)(3)(A), (B). If the Service proposes to list a species, the agency generally must issue a final determination on listing within another twelve months.
After ten months passed without a substantive response from the Service, the Center and its allies brought litigation to enforce the ESA’s statutory deadline. Ctr. for Biological Diversity v. Norton, Civ. No. 05-5191 JSW (N.D. Cal. filed Dec. 15, 2005). Shortly thereafter, the Service issued its “90-Day Finding” on the petition, finding that listing of the polar bear “may be warranted” and initiated a formal status review for the species. 71 Fed. Reg. 6745 (Feb. 9, 2006). The parties then settled the case with a consent decree requiring the Service to issue its required twelve-month finding by December 27, 2006.
The Service completed a detailed scientific review of the polar bear’s status and compiled their findings in a document entitled Range-Wide Status Review of the Polar Bear (Ursus maritimus). The status review formed the basis for the proposed rule to list the species rangewide as “threatened.” 72 Fed Reg. 1064, 1065 (Jan. 9, 2007) (the “Proposed Listing Rule”). The agency’s Proposed Listing Rule found that polar bears are dependent upon sea-ice habitat and that, due to projected sea-ice loss and inadequate regulatory mechanisms to address sea-ice recession, the polar bear was likely to become an endangered species in the foreseeable future, and therefore warranted listing as “threatened” under the ESA. Id. at 1095.
Following publication of the Proposed Listing Rule, the Service requested additional scientific advice from its sister agency, the U.S. Geological Survey (USGS), regarding the future status of polar bears in a warming world. The USGS conducted extensive modeling work, culminating in a report with dire predictions that two-thirds of the world’s polar bears will be extinct by 2050.
When the Service failed to issue a final listing rule by the January 2008 statutory deadline, conservation groups sued once again to compel a final listing decision. Under court order to issue a decision by May 15, 2008, Center for Biological Diversity v. Kempthorne, 2008 WL 1902703 (N.D. Cal. Apr. 28, 2008), the Service issued a final listing decision. 73 Fed. Reg. 28,212 (May 15, 2008) (the “Final Listing Rule”).
In the Final Listing Rule, the Service extensively discussed the polar bear’s reliance on sea ice for all of its essential behaviors and the many ways in which sea-ice habitat loss negatively impacts the species. These impacts include a reduced length of the hunting season, reduced availability of the polar bear’s ice seal prey, increased travel distance between sea ice and some denning sites on land, larger open water areas that increase the risk of drownings, and higher mortality from increased human/bear encounters as polar bears are forced to spend more time on land. After evaluating how sea-ice loss will harm polar bear populations, the Service considered evidence that sea-ice loss was already having an impact on some better-studied polar bear populations, including declining population numbers, decreases in cub survival, and declining body weight in adults. The Service then evaluated how the polar bear’s essential sea-ice habitat is declining and will continue to decline based on observed changes and trends in sea ice and climate model projections. Based on the totality of the evidence and analysis, the Service determined the polar bear was “likely to become an endangered species within the foreseeable future” and listed the species as “threatened” under the ESA.
Six separate challenges were filed in response to the Final Listing Rule, representing fifty-six plaintiffs, including the State of Alaska and hunting groups that argued the polar bear’s “threatened” listing under the ESA was not warranted. In contrast, several conservation organizations argued a more protective “endangered” listing was required under the ESA. The district court upheld the Service’s Final Listing Rule. In re Polar Bear Endangered Species Act Listing, 794 F. Supp. 2d 65 (D.D.C. 2011).
The hunting plaintiffs and the State of Alaska appealed, raising numerous substantive and procedural claims. The appellants alleged the Service failed to “link[ ] habitat loss to a risk of future extinction,” “relied on defective population models,” and “misapplied the term ‘likely’” in determining the polar bear was “likely to become an endangered species” under the ESA.
In March 2013, the D.C. Circuit upheld the district court’s ruling, finding that the Service’s “scientific conclusions [were] amply supported by data and well within the mainstream on climate science.” In re Polar Bear Endangered Species Act Listing & Section 4(d) Rule Litig. – MDL No. 1993, 709 F.3d 1, 8 (D.C. Cir. 2013). The agency “carefully and clearly” explained how Arctic habitat loss harms the polar bear and documented how it used models to predict decline. Id. at 10, 14. Finally, the court upheld the agency’s finding that the species is “likely” to become “in danger of extinction” and thus qualifies as an ESA “threatened” species, even though the agency did not “specifically define the term ‘likely’” or assign a particular numeric probability of extinction. Id. at 15. The court described the challenges as “nothing more than competing views about policy and science, on which we defer to the agency.” Id. at 3. The D.C. Circuit denied rehearing of the decision in April 2013, but the hunting group plaintiffs have petitioned for certiorari. Safari Club Inter. v. Jewell, No. 13-142 (July 29, 2013).
The strong and definitive language used by the D.C. Circuit not only upholds the polar bear listing, but confirms that ESA’s protections can extend to species threatened by climate change. The ESA’s forward-looking mandate requires the Service to list species based on likely future effects, even before the population actually begins to decline, allowing the federal government to take proactive measures to protect species now, before it’s too late.
The polar bear ESA listing and the court’s subsequent affirmation of the Final Listing Rule is a big step for polar bear protection, but much remains to be done. In 2010, the Service designated 187,000 square miles of “critical habitat” in Alaska for the polar bear as required by the ESA. But the Alaska district court remanded the decision, requiring the agency to explain how all areas designated contained essential habitat features. Alaska Oil & Gas Ass’n v. Salazar, 2013 U.S. Dist. LEXIS 10559 (D. Alaska 2013). And although the ESA requires the agency to prepare a polar bear recovery plan, detailing management measures and setting timelines for recovery, the Service has not issued, much less finalized, this plan. 16 U.S.C. § 1533(f)(1).
Finally, the Service must review each listed species’ status every five years to determine if extinction risk has escalated. 16 U.S.C. § 1533(c). In the five years since the polar bear was listed, the dire predictions about climate change and sea-ice recession and its impact on polar bears have not only proven true, but have exceeded expectations. September 2012 marked a record-low in summer sea-ice extent, as the Arctic lost an area of ice the size of Texas since the previous record-low in 2007. Carbon dioxide levels are on the verge of breaking a new and dangerous milestone of 400 ppm. And new studies document alarming effects on polar bears. See E. Struzik, Polar Bears ‘May Need to Be Fed by Humans to Survive,’ The Guardian (Feb. 7, 2013) (reporting on article in Conservation Letters from Derocher, Stirling, and other Arctic scientists).
The polar bear’s status as a climate change icon is well deserved, as the polar bear’s fate mirrors the fate of numerous other Arctic and climate-impacted species around the world. Saving the polar bear requires deep and rapid greenhouse pollution reductions in order to slow and then reverse the world’s warming trend and preserve the summertime sea ice in the Arctic. While the polar bear ESA listing decision is good news for the bear and other climate-vulnerable wildlife, legal action must translate into actual greenhouse pollution reductions soon in order to save the bear and its Arctic home.