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Center for Biological Diversity v. Kempthorne

588 F.3d 701 (2009)

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Center for Biological Diversity v. Kempthorne

United States Court of Appeals for the Ninth Circuit

588 F.3d 701 (2009)

Facts

Climate change threatened the polar bear due to the loss of sea ice, its primary habitat, forcing polar bears to retreat to coastal areas. Increased contact with humans had caused a reduction in prey, declining health, and a decline in the cub survival rate. Pacific walruses faced similar negative impacts from climate change. The United States Fish and Wildlife Service (FWS) (defendant) promulgated temporary regulations allowing oil and gas operators to obtain authorization to engage in nonlethal take (harassing or capturing) of marine mammals along the Beaufort Sea in Alaska. The FWS prepared an environmental assessment (EA) to evaluate the impact of the take regulations. The EA noted that climate change had numerous adverse impacts on polar bears and that it was unclear whether climate change could affect the impact of the regulations. But the FWS concluded that there would be no significant impact from the take regulations because the industrial activity was mostly conducted on land away from the sea ice where bears gravitate to, and because past activity had minimal impacts on bears and walruses, with no reports of deaths since 1993. Environmental organizations, including the Center for Biological Diversity (the Center) (plaintiff), filed an action in federal district court claiming that the take regulations violated the National Environmental Policy Act (NEPA). The Center argued that the finding of no significant impact was arbitrary and capricious because it did not address the impact of the regulations in the context of climate change. The Center urged that climate change posed highly uncertain risks, requiring the preparation of an environmental-impact statement (EIS). The district court granted summary judgment for the FWS, and the Center appealed.

Rule of Law

Issue

Holding and Reasoning (Farris, J.)

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