January 01, 2015

Lessons from the Polar Bear Listing Litigation

Andrew C. Mergen

The April 3, 2006, cover of Time magazine featured a very lonely looking polar bear on a very small ice flow. The top of the magazine read: “Special Report Global Warming.” The left hand side of the magazine proclaimed in block capital letters: “Be worried. Be Very Worried.” It is hard to say when the polar bear became the preeminent four-legged symbol of the threat to the earth and especially its wildlife posed by global climate change but that April cover of Time was undoubtedly an important step in the bear’s journey to its current status as a climate change icon. That a bear should rise to this status is hardly surprising. Bears, including polar bears, have always captured our imagination. People and bears have a very long history together. In a cave in France, an 80,000 year old Neanderthal grave is connected to the grave of a brown bear in a manner that indicates that the animal had obtained some special status in the imagination of the gravediggers. More recent cave art is replete with images of bears. In our own modern era, we have the Teddy bear. Around Christmas time, another iconic image of the polar bear appears: the Coca Cola polar bears. Their placement in advertisements is at the very least intended to remind us that Coca Cola is cool. However, climate change is a threat to cool, to our planet, and especially to polar bears. In our era, we like bears and we want to save them and, of course, we’d also like to save our planet.

This article is about the Fish and Wildlife Service’s (FWS) decision to list the polar bear as a threatened species under section 4 of the Endangered Species Act (ESA), 16 U.S.C. § 1533—a step intended to conserve the bear—and especially about the litigation that followed that listing decision. How the courts resolved the controversy surrounding the polar bear listing is worthy of study because the listing cases forced the courts to confront a number of difficult issues. As a sterling example of a group known as “charismatic megafauna,” the polar bear attracts enormous amounts of attention from the public. People care about the polar bear for a wide variety of reasons, and this was reflected in the response to the listing. The polar bear listing decision was challenged by a number of organizations. Some of the organizations claimed the bear was not just “threatened” under the ESA but should be listed as “endangered.” Some litigants believed that the polar bear listing decision provided an opportunity to use the ESA to more broadly regulate the causes of climate change. Other organizations were concerned about what the listing would mean for oil and gas development, Alaska Native communities, and hunting. In sum, the threat posed to the bears’ survival—global climate change—is an especially daunting one that the law struggles to address. How the courts resolved this litigation provides both lessons and precedents for the future.

Four lessons emerge from the litigation. First, ESA litigation is now increasingly complex, and the courts will rely on a complex litigation tool kit to manage it. Second, although many species are imperiled by climate change, the ESA does not work very well as a mechanism for regulating the greenhouse gas emissions that warm our planet. Third, the science that underlies listing decisions and that is obtained as a result of listing is of profound importance. Finally, although these cases are complex, the courts are likely to resolve these novel issues using traditional administrative law tools and doctrines.

The ESA and the Listing of the Polar Bear

The polar bear listing litigation has a long history. In 2005, the Center for Biological Diversity (the Center) petitioned the Secretary of the Interior and the FWS to list the polar bear under the ESA. When a species is listed under the ESA as either “threatened” or “endangered,” it is then subject to protective measures intended to conserve the species. The petition filed by the Center focused on the threats to the bear from global climate change. Specifically, the Center argued that the bear should be listed due to observed and anticipated declines in the Arctic sea ice upon which the polar bear relies for survival. The petition was joined, several months later, by two other major environmental groups, the Natural Resources Defense Council and Greenpeace. When the FWS failed to act on the petition within ESA statutory deadlines, the petitioners filed a complaint in the United States Federal District Court in the Northern District of California. Ctr. for Biological Diversity v. Dirk Kempthorne, C.A. No. 4:08-1339.

After several years of legal wrangling, the FWS finally acted on the petition to list the bear. With considerable fanfare, on May 14, 2008, then Secretary of the Interior Dirk Kempthorne announced that the polar bear was being listed as a threatened species under the ESA. To some, the Secretary’s decision may have seemed grudging. Kempthorne explained that he believed “this decision is most consistent with the record and legal standards of the Endangered Species Act—perhaps the least flexible law Congress has ever enacted.” It was, according to Kempthorne, “a difficult decision. But in light of the scientific record and the restraints of the inflexible law that guides me, I believe it was the only decision I could make.” Id. The “difficult decision” to list the polar bear as threatened under the ESA did not end the controversy over protection of the bear. The listing decision was immediately challenged by a number of stakeholders.

The ESA directs the secretary to determine whether a species is endangered or threatened because of any of five factors, and to list the species if the Secretary finds, based on the best scientific and commercial data available to the agency, that a species is an “endangered species” or a “threatened species.” ESA § 4, 16 U.S.C. 1533(a)(1), (b), (c); ESA § 3(6), (20), 16 U.S.C. § 1532(6), (20). The ESA defines the phrase “endangered species” to mean “any species which is in danger of extinction throughout all or a significant portion of its range.” Id. § 1532(6). It defines a “threatened species” as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20). The term “species” includes “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” Id. § 1532(16).

More specifically, section 4(a) provides that the Secretary shall determine whether any species is endangered or threatened because of any of the following five factors:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range;

(B) overutilization for commercial, recreational, scientific, or educational purposes;

(C) disease or predation;

(D) the inadequacy of existing regulatory mechanisms; or

(E) other natural or manmade factors affecting its continued existence.

Id. § 1533(a)(1).

Section 4(b) provides that the secretary must make the determination whether to list a species “solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation . . ., to protect such species. . . .” Id. § 1533(b)(1)(A). A species listed as endangered or threatened is afforded certain legal protections pursuant to sections 7 and 9 of the ESA. 16 U.S.C. § 1536(a)(2) (federal agency must avoid action that is likely to jeopardize listed species); id. § 1538(a)(1) (identifying prohibited acts). The ESA does not establish prohibitions for threatened species, but section 4(d) authorizes FWS to extend section 9 prohibitions, and other protective measures, to any threatened species. Id. § 1533(d).

The listing rule occupied more than 90 pages in the Federal Register. See generally, Fish and Wildlife Service, Determination of Threatened Status for the Polar Bear (Ursus maritimus) Throughout Its Range, 73 Fed. Reg. 28,212 (May 15, 2008) (hereinafter the Listing Rule). In listing the polar bear as “threatened” and not “endangered,” the FWS had necessarily determined that the polar bear is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20). That determination was based on a considerable body of scientific evidence that had been accumulated in the three years since the Center had petitioned for the listing. This evidence ultimately reduces to three component parts. First, polar bears are dependent on sea ice for their survival; second, sea ice is declining; and third, climatic changes have and will continue to dramatically reduce the extent of sea ice to a degree sufficiently grave to jeopardize polar bear populations. Listing Rule, 73 Fed. Reg. at 28,212. Notably, in determining that the polar bear was likely to become an endangered species within the foreseeable future, the FWS concluded that forty-five years was the appropriate foreseeable time period. Id. at 28, 253–55. This determination became one of several issues in litigation regarding the Listing Rule.

In conjunction with listing a species as threatened, section 4(d) of the ESA requires the FWS to promulgate such rules as it deems “necessary and advisable to provide for the conservation of [threatened] species.” 16 U.S.C. § 1533(d). The ESA provides that the FWS may afford all, some, or none of the protections to a threatened species that it would to an endangered species under Section 9(a)(1) of the ESA, 16 U.S.C. § 1538(a)(1). Thus, pursuant to ESA section 4(d), in conjunction with listing a species as threatened, the FWS undertakes an analysis of which protections should be extended. Section 9 of the ESA prohibits the direct and incidental take of a listed species. 16 U.S.C. § 1538(a)(1).

Along with the Listing Rule, the FWS issued a section 4(d) Rule for the polar bear. FWS, Special Rule for the Polar Bear, Interim Final Rule, 73 Fed. Reg. 28306 (May 15, 2008) (hereinafter the “4(d) Rule”) (subsequently codified at 50 C.F.R. § 17.40(q)). The section 4(d) rule became another major focus of litigation surrounding the polar bear listing decision. In its section 4(d) rule for the polar bear the FWS provided that none of the ESA’s section 9 prohibitions will apply to any taking of polar bears that is incidental to, but not the purpose of carrying out an otherwise lawful activity, unless that taking is caused by an activity occurring within the current range of the polar bear in the United States. Thus, greenhouse gas emissions that originate outside of the polar bear’s range, and the potential effects of such emissions on climate change, are not subject to the restrictions in the 4(d) Rule.

The Listing Rule was challenged by a number of organizations and individuals including: (1) the State of Alaska (concerned about the management of its resources); (2) the Safari Club International and the Safari Club Foundation (concerned about lost hunting opportunities including foreign trophy hunts); (3) the California Cattlemen’s Association and the Congress on Racial Equality (with an averred interest on the effect of ESA citizen suits on business and minority owned businesses); (4) the Center for Biological Diversity, the Natural Resources Defense Council and Greenpeace (environmental groups interested in wildlife conservation); (5) the Conservation Force, the Inuvialuit Game Council, and other groups and individuals who trophy hunt or have an interest in polar bear trophy hunts in Canada. The challenges from the environmental groups were filed in the U.S. District Court for the Northern District of California, and the other challenges were filed in the U.S. District Court for the District of the District of Columbia. The Listing Rule was challenged by the Center for Biological Diversity, the Natural Resources Defense Council and Greenpeace in the U.S. District Court for the Northern District of California, and by another conservation group, the Defenders of Wildlife, in the U.S. District Court for the District of the District of Columbia. The number of parties to the litigation, their varied interests and concerns, and the number civil actions and courts made this litigation difficult to manage from the start.

The Polar Bear Litigation as Complex Litigation

This initial difficulty was resolved when all of these challenges were consolidated as a Multidistrict litigation case in the U.S. District Court for the District of Columbia. The utilization of the Judicial Panel on Multidistrict Litigation (the MDL Panel) to manage the polar bear listing cases highlights the first lesson of this litigation. ESA litigation is increasingly complex and the courts will turn to new tools to manage this litigation. On its face, these cases are outside the norm for MDL litigation.

In 1968, Congress enacted 28 U.S.C. § 1407 (the MDL Statute or Act), which permits the transfer and consolidation of related cases pending in federal districts throughout the United States. Specifically, the Act provides that civil actions pending in different districts and involving one or more common questions of fact may be transferred to any district court for coordination of consolidated pretrial proceedings. The court to which these actions are transferred is, for ease of reference, referred to as the MDL court.

A transfer pursuant to Section 1407(a) is authorized upon a finding that the transfer will “promote the just and efficient conduct” of the case and provide for “the convenience of parties and witnesses.” Section 1407 creates a Judicial Panel on Multidistrict Litigation (the Panel or MDL Panel) that oversees the consolidation of related cases. The Panel is composed of seven federal circuit and district court judges appointed by the Chief Justice of the United States, with the restriction that no two members may be from the same circuit.

Pursuant to the MDL Statute, transfer proceedings can be initiated by motion of a party, or by the MDL Panel sua sponte. Before the Panel will transfer an action it must be satisfied that three express statutory requirements have been met. First, as noted, the civil actions must involve “one or more common questions of fact”; second, the transfer must be for the “convenience of parties and witnesses” on the whole; and third, the transfer must “promote the just and efficient conduct of such actions.” 28 U.S.C. § 1407(a).

A former Chairman of the MDL Panel, the Honorable John G. Heyburn II (W.D. Ky.), has explained that the MDL docket “encompasses litigation categories as diverse as single accidents, such as airplane crashes, train wrecks, and hotel fires, mass torts, such as those involving asbestos and hormone replacement therapy drugs; other types of product liability; patent validity and infringement; antitrust price fixing; securities fraud; and employment practices.” 82 Tul. L. Rev. 2225, 2230–2231 (2007–2008). Notably, missing from this list is any mention of environmental or natural resources litigation. Since the MDL process was created to govern pre-trial proceedings it is not obvious that it would also apply in cases, like ESA litigation, that are governed by the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq., and are limited to review of a record and resolved through motions for summary judgment. The MDL Panel recognized that the polar bear litigation was different from the typical MDL case but nonetheless concluded that assigning the cases to a single MDL court was appropriate and would “avoid potentially conflicting obligations placed upon the federal defendants.” In re Polar Bear Endangered Species Act Listing, 588 F. Supp. 2d 1376, 1377 (U.S. Jud. Pan. Mult. Lit. 2008). The panel assigned all of the litigation to the Honorable Emmet G. Sullivan of the District of Columbia.

It is tempting to see the polar bear litigation and the use of an MDL court in that litigation as a singular event. But decisions involving a wide variety of species are likely to attract a wide range of litigants. The future of the sage grouse, a bird of open landscapes found throughout much of the western United States, is of concern to bird lovers, other wildlife enthusiasts, sportsmen who hunt in sage-grouse country, as well as ranchers and oil and gas interests (who may fear that a listing decision will imperil economic development). And since the polar bear listing decision, the MDL Panel has assigned another set of ESA cases to an MDL court. In re Endangered Species Act Section 4 Deadline Litig., 716 F. Supp. 2d 1369 (Jud. Pan. Mult. Lit. 2010) involves a dozen cases brought in several courts seeking to designate wildlife species as threatened or endangered species. The MDL Panel, in consolidating this action before a single court, again observed that consolidation would conserve the resources of the parties and the judiciary as well as result in more consistent rulings. Hence, it is reasonable to conclude that in future multiparty ESA litigation; an MDL court will be utilized to manage the litigation.

The ESA Is a Poor Mechanism for Regulating Greenhouse Gas Emissions

The diverse multiparty nature of the polar bear litigation made it initially complicated to manage, but the nature of the threat to the species is part of what made the case both important to the public and difficult for the FWS. The FWS’s determination, as set forth in the Listing Rule, that greenhouse gas emissions originating outside of the polar bear’s range, and the potential effects of such emissions on climate change, would not be affected by the listing of the polar bear as threatened was a disappointment to the environmental plaintiff organizations; those organizations thought the listing might provide an additional mechanism for regulating such emissions. To ignore the emissions was after all to ignore the primary threat to the species from greenhouse gas emissions and the loss of the bears’ sea ice habitat.

Judge Sullivan, however, found that the FWS had appropriately declined to exempt greenhouse gas emissions from the ESA section 9 take prohibitions. Judge Sullivan explained that the Listing Rule survived rational basis review where the record compiled by the FWS amply supported the agency’s conclusion that there was no way to currently determine how emissions from a specific facility influence climate change and then subsequently affect specific listed species including polar bears. In re Polar Bear Endangered Species Act Listing, 818 F. Supp. 2d 214, 231 (D.D.C. 2011).

Judge Sullivan’s finding supports the second lesson of the polar bear litigation: the ESA is not a legal mechanism that can be utilized to regulate greenhouse gas emissions. Establishing actual or proximate harm to species from particular greenhouse gas emitters would be immensely difficult if it is even possible at all. Professor J.B. Ruhl has warned that any effort to use the ESA to regulate greenhouse gas emissions risks squandering agency resources on a futile effort beyond the reach of the ESA. J.B. Ruhl, Climate Change and the Endangered Species Act: Building Bridges to the No-Analog Future, 88 B.U.L. Rev. 1, 60 (2008).

In ESA Listings Science Is of Paramount Importance

A cynic might ask what use is the listing decision to the polar bear if the most pressing threat to the bear—climate change—is left unaddressed. The answer is straightforward: extending the ESA’s protections to the bear ensures that the most immediate and conventional threats found within its range are addressed. A bear population protected from these threats is more resilient in the face of global climate change. The science that provided the basis for the listing decision is also tremendously important. The FWS has developed enormous resources to understand the conservation status of the animal.

The state of Alaska, oil and gas interests and hunting groups challenged both the science and FWS’s interpretation of the science that supported the listing decision. For example, these groups challenged the FWS’s interpretation of climate data that led to its determination that the polar bear would become endangered in the foreseeable future. The FWS concluded that forty-five years was the appropriate foreseeable time period and, in arriving at that conclusion, relied on the most widely accepted climate models. The court of appeals, like the district court before it, rejected the corresponding challenges by the industry and hunting groups. In re Polar Bear Endangered Species Act Listing, 709 F.3d 1, 15–16 (D.C. Cir. 2013). It is clear from the D.C. Circuit’s opinion that it was impressed by the agency’s record in support of its decision. The court states that where, among other things, “scientific experts (by a wide majority) support the agency’s conclusion the court is required to uphold the Listing Rule.” Id. at 9. And this underscores the significance of the third lesson of the polar bear listing: Science is of paramount importance in justifying agency decisions under the ESA.

This aspect is, of course, somewhat self-evident, but it is only part of the lesson. The science that undergirds the listing decision is also important to our understanding of the animal and our understanding of how climate change imperils biodiversity. This knowledge may spur and inform future actions to address climate and promote the management of resilient populations of the animal. Thus, the science developed in support of the listing decision continues to be important and relevant.

In Reviewing ESA Challenges the Courts Will Adhere to Fundamental Administrative Law Principles

This science, as noted above, is most scrutinized through the crucible of litigation. How that science is examined by the court brings us to the fourth and final lesson of the polar bear litigation. Even as the litigation involving endangered species becomes more complex and involves increasing number of stakeholders and more difficult scientific issues, the courts return again and again to the fundamental principles of administrative law in reviewing agency ESA decision making. In reviewing the polar bear listing decision, the D.C. Circuit, strayed not a millimeter from the substantial deference that permeates the arbitrary and capricious standard of the Administrative Procedure Act (APA).

The court’s reliance on the familiar APA principles in increasingly complicated ESA litigation is further illustrated by the Ninth Circuit’s recent decision in San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581 (9th Cir. 2014). In this case, water districts, water users and state water contractor, representing a total of six complaints, brought an ESA challenge to the biological opinion addressed to the impact of the state water projects’ continued operations on a threatened fish species, the delta smelt. The case extended, at the time of the Ninth Circuit ruling, over seven years. The plaintiffs prevailed in district court and the district court invalidated the biological opinion. As in the polar bear litigation, the scientific issues before the court were complex. As it struggled to address the myriad of issues before it, the district court strayed from administrative law and record review principles. In particular, the district court made use of a substantial number of extra-record declarations submitted by the plaintiffs over the vigorous objections of the federal defendants and environmental interveners. Id. at 603. On review, the Ninth Circuit issued a strong rebuke to the district court, finding that it had overstepped its bounds in departing from established principles of administrative law. Id. at 604. Ultimately, the Ninth Circuit reversed the district court and upheld the FWS’s biological opinion. Faced with both complex litigation and science, the Ninth Circuit in the delta smelt litigation, like the D.C. Circuit before it in the polar bear litigation, ultimately turned to established principles of administrative law to resolve the matter.

The polar bear was recently described by John Mooallem, in his book, The Wild Ones, as a “psychic pack animal” upon which we humans load our hopes and fears. This status makes litigation over such animals particularly worthy of study because judges and litigants know that their tactics and decisions will be scrutinized by a polar bear-loving public. We can assume that everyone works harder knowing that the world is following a dispute closely.

That climate change is a threat to biodiversity is beyond dispute. The listing of other species that are imperiled, in whole or in part, by climate change will only continue. For example, on September 10, 2014, the National Oceanic and Atmospheric Association listed 20 species of coral as threatened under the ESA. Final Listing Determinations on A Proposal to List 66 reef building coral and to reclassify Elkhorn and Staghorn Corals, 79 Fed. Reg. 53852. Among the threats to these species identified in the listing decision was global climate change. The science behind this listing decision was described by the agency as complex and unprecedented. As other species are listed, litigation will inevitably follow, and litigators will continue to draw on the lessons learned from the polar bear cases.

Andrew C. Mergen

Mr. Mergen is Deputy Chief of the Appellate Section of the Environment & Natural Resources Division, U.S. Department of Justice. The views expressed in this article are those of the author and do not necessarily reflect the views of the Department of Justice or any other federal agency.