818 F.Supp.2d 214 (D.D.C. 2011), MDL 1993, In re Polar Bear Endangered Species Act Listing and

Docket Nº:MDL 1993.
Citation:818 F.Supp.2d 214
Opinion Judge:EMMET G. SULLIVAN, District Judge.
Party Name:In re POLAR BEAR ENDANGERED SPECIES ACT LISTING AND
Attorney:Anna Margo Seidman, Safari Club International, John C. Martin, Crowell & Moring LLP, Benjamin Ellison, Patton Boggs, LLP, Michael B. Wigmore, Bingham McCutchen LLP, Benjamin Longstreth, Natural Resources Defense Council, Jason C. Rylander, Defenders of Wildlife, Howard M. Crystal, Meyer Glitzenst...
Case Date:October 17, 2011
Court:United States District Courts, District of Columbia
 
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818 F.Supp.2d 214 (D.D.C. 2011)

In re POLAR BEAR ENDANGERED SPECIES ACT LISTING AND § 4(D) RULE LITIGATION

This Document Relates To: Ctr. for Biological Diversity, et al. v. Salazar, 1 et al., No. 08-2113; Defenders of Wildlife v. U.S. Dep't of the Interior, et al., No. 09-153.

Misc. No. 08-764 (EGS).

MDL No. 1993.

United States District Court, District of Columbia.

October 17, 2011

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Anna Margo Seidman, Safari Club International, John C. Martin, Crowell & Moring LLP, Benjamin Ellison, Patton Boggs, LLP, Michael B. Wigmore, Bingham McCutchen LLP, Benjamin Longstreth, Natural Resources Defense Council, Jason C. Rylander, Defenders of Wildlife, Howard M. Crystal, Meyer Glitzenstein & Crystal, Washington, DC, Bradley E. Meyen, Assistant Attorney General, Department of Law, Anchorage, AK, Craig D. Galli, Holland & Hart LLP, Salt Lake City, UT, M. Reed Hopper, Theodore Hadzi-Antich, Damien M. Schiff, Pacific Legal Foundation, Sacramento, CA, Murray D. Feldman, Holland & Hart LLP, Boise, ID, Brendan R. Cummings, Kassia R. Siegel, Joshua Tree, CA, Andrew Elsas Wetzler, Rebecca Riley, Natural Resources Defense Council, Inc., Chicago, IL,

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John J. Jackson, III, Conservation Force, Metairie, LA, for Plaintiffs.

Douglas Scott Burdin, Safari Club International, Thomas Richard Lundquist, Crowell & Moring LLP, Washington, DC, for Plaintiffs/Defendant.

Guillermo A. Montero, Kristen Byrnes Floom, Clifford Eugene Stevens, Jr., Meredith L. Flax, Robert Pendleton Williams, Hao-Chin Hubert Yang, Erik Edward Petersen, U.S. Department of Justice, John F. Cooney, Margaret N. Strand, Venable, LLP, Rachel D. Gray, Roger R. Martella, Jr., Thomas G. Echikson, Sidley Austin LLP, Washington, DC, Jeffrey M. Feldman, Kevin M. Cuddy, Feldman Orlansky & Sanders, Anchorage, AK, for Defendants.

Jeffrey W. Leppo, Ryan P. Steen, Stoel Rives LLP, Seattle, WA, Joseph Michael Klise, Crowell & Moring LLP, Washington, DC, for Intervenor Defendant.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

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, 794 F.Supp.2d 65 (D.D.C.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.

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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, 794 F.Supp.2d at 69. 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

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species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 2 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.3 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...

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