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Polar Bear Litigation

Date Filed: 12/11/2008
Case Status: Active

In Re: Polar Bear Endangered Species Act Listing and 4(d) Rules

Defenders has brought suit to challenge the polar bear special 4(d) rule exempting the species from take protections, while also intervening to defend the listing from challenges brought by the State of Alaska and numerous industry and hunting groups.

Case Background:

On May 14, 2008, the U.S. Fish and Wildlife Service (FWS) finally recognized that the polar bear deserves listing as a threatened species under the Endangered Species Act (ESA) due to the impacts of global warming and other threats to its Arctic habitat, such as oil and gas development. Defenders of Wildlife publicly welcomed that long-overdue decision. Interior Secretary Dirk Kempthorne made it clear, however, that the Bush Administration did not believe that the issue of global warming and its impact on polar bears should be addressed through the ESA.

In addition, FWS’s listing decision was accompanied by a special rule under Section 4(d) of the ESA, declining to apply to the polar bear the normal prohibition in the FWS regulations on take of a threatened species.

The 4(d) rule asserts that, with respect to activities within the polar bear's current range, the species is already adequately protected under the Marine Mammal Protection Act (MMPA) and the ESA will not add to that protection. In an attempt to preclude application of the ESA to greenhouse gas emitters such as coal-fired power plants, the rule also directs, that the incidental take prohibitions of the ESA do not apply to any activities outside Alaska. In other words, the Bush administration acknowledge that the polar bear warranted listing under the ESA primarily due to the rapid melting of its Arctic sea ice habitat being caused by global warming, whilc sumultaneously exempting greenhouse gas emitters from the reach of the Act.

Despite the best efforts of the Bush administration to ensure that the listing would have no meaningful effect on even the largest of greenhouse gas emitters, the State of Alaska and numerous industry groups, including the American Petroleum Institute, U.S. Chamber of Commerce, and Alaska Oil and Gas Association have sued in an effort to overturn the listing. Defenders of Wildlife has intervened to help the federal government defend the legality of the listing, while also legally challenging the 4(d) rule exempting the polar bear from the ESA’s take protections. All of the cases involving the polar bear’s listing and 4(d) rules have now been consolidated into a single action in the U.S. District Court in the District of Columbia.