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

In 2008, the Secretary of Interior listed the polar bear as ‘threatened’ under the Endangered Species Act (ESA). In light of the listing, the U.S. Fish and Wildlife Service (FWS) properly opposed the regulation of emissions outside the polar bear's habitat. Plaintiffs and environmental activists argued that the listing requires the federal government to regulate greenhouse gases from all sources under the ESA, because greenhouse gases from any source potentially affect the polar bear’s arctic habitat. NCLC, though, has urged the U.S. District Court for the District of Columbia to hold that the polar bear is properly listed as a threatened species under the ESA and that FWS is not required to extend ESA prohibitions to threatened species.

Normally, a ‘threatened’ listing would trigger a burdensome permit process. However, the Secretary of Interior used his discretion under Section 4(d) of the ESA to issue a "special rule" exempting all states except Alaska from the burdensome and expensive permit process. Although NCLC agreed with the Secretary's decision to craft the exemption, NCLC challenged as arbitrary and capricious the Secretary's failure to include Alaska among the states exempted from the ESA regulatory process. The government attempted to remedy the error by modifying its position to exempt from the permit process all areas except the polar bear’s actual habitat. NCLC now argues that the modification still arbitrarily subjects certain geographic areas to regulation, because the same scientific conclusions relied upon to exempt all other regions from regulation under the ESA also compel exemption for the polar bear’s habitat.

NCLC intervened in a case on this issue in the U.S. District Court for the Northern District of California (Center for Biological Diversity, et al. v. Kempthorne, et al.), and also filed its own lawsuits against the federal government in the U.S. District Court for the District of Columbia (American Petroleum Institute, et al. v. Kempthorne, et al. and Chamber of Commerce v. Kempthorne, et al.). NCLC then petitioned the Multidistrict Litigation Panel to consolidate and transfer all the litigation to the D.C. District Court under In re: Polar Bear Endangered Species Act Listing and 4(d) Litigation.

The U.S. District Court for the District of Columbia ruled that the Secretary properly listed the polar bear as "threatened" rather than endangered. In a subsequent ruling, the court held that the Secretary properly exercised his discretionary authority under the Endangered Species Act to issue the 4(d) Final Rule, but vacated the rule on NEPA grounds. The court left intact the Interim Final Rule, as NCLC and its co-litigants had requested. 

Earlier in the litigation, NCLC successfully petitioned the Multidistrict Litigation Panel to consolidate and transfer to the D.C. District Court all of the litigation associated with the decision of the Secretary of the Interior to list the polar bear as a “threatened” species under the Endangered Species Act.

Complaint for American Petroleum Institute (API) v. Kempthorne filed 8/27/08. Petition to intervene in Center for Biological Diversity v. Kempthorne filed 9/4/08. Reply brief to challenge to intervention in Center for Biological Diversity filed 9/25/08. Petition to intervene granted 11/18/08. Amicus brief urging consolidation and transfer of litigation filed 9/29/08. Litigation transferred 12/3/08. Chamber of Commerce v. Kempthorne complaint filed 12/11/08. Litigation consolidated as In re: Polar Bear Endangered Species Act Listing and 4(d) Litigation 12/12/08. MDL tag-along notice letter filed 1/14/09. Amended API complaint filed 3/13/09. Chamber of Commerce v. Kempthorne consolidated with In re: Polar Bear Endangered Species Act Listing and 4(d) Litigation 3/18/09. Plaintiffs’ motion to dismiss API complaint without prejudice filed 4/6/09. Motion to dismiss API complaint granted 5/1/09. Chamber of Commerce v. Kempthorne voluntarily dismissed 5/14/09. Opposition to motion for summary judgment in In re: Polar Bear Endangered Species Act Listing and 4(d) Litigation filed 3/26/10. Reply brief filed 8/16/10. Supplemental brief filed 10/18/10. Threatened listing upheld 6/30/11. 4(d) Final Rule vacated, Interim Final Rule left intact 10/17/11.