In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation

In May 2008, the United States Fish and Wildlife Service (the service) (defendant) published a final rule listing the polar bear as a threatened species under the Endangered Species Act (ESA) (the listing rule). Pursuant to § 4(d) of the ESA, the service created an accompanying special rule specifying the protection mechanisms applicable to the polar bear under the listing rule. The service determined that the special rule was necessary to address the direct threat of oil and gas exploration to polar bears in Alaska. Based on scientific evidence from the United States Geological Survey (USGS) and the Environmental Protection Agency (EPA), the service also determined that climate-change modeling could not draw a causal connection between specific greenhouse-gas emissions and sea-ice loses that caused incidental polar bear takes. The finalized special rule applied the ESA’s § 9 take prohibitions to polar bears but created an exception for incidental takes caused by activities occurring outside the polar bear’s geographical range (the incidental-take exception). Environmental advocacy groups (plaintiffs) challenged the special rule, arguing that the rule violated the ESA because the incidental-take exception reduced the protections applicable to polar bears without demonstrating a valid conservation benefit for departing from the ESA’s default protections. Both parties moved for summary judgment on the ESA claim.