In Re: Polar Bear Endangered Species Act Listing and 4(d) Rule Litigation - Mdl 1993

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
IN RE POLAR BEAR ENDANGERED )
SPECIES ACT LISTING AND § 4(d) )
RULE LITIGATION ) Misc. No. 08-764 (EGS)
) MDL Docket No. 1993
)
)
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 )
)
MEMORANDUM OPINION
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, Misc. No. 08-764, 2011
U.S. Dist. LEXIS 70172 (D.D.C. June 30, 2011) [hereinafter In re
1
Pursuant to Fed. R. Civ. P. 25(d), Interior Secretary Ken
Salazar is automatically substituted as a defendant for his
predecessor, Dirk Kempthorne, who was sued in his official
capacity.
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
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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.
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, 2011 U.S. Dist. LEXIS 70172, at *9-11. 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
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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”
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(“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
2
The ESA requires the Secretary of the Interior to publish
and maintain a list of all species that are designated as
threatened or endangered. Id. § 1533(c). The Secretary of the
Interior and the Secretary of Commerce are responsible for
making listing decisions. Id. §§ 1532(15), 1533(a)(2). The
Secretary of the Interior has delegated his responsibilities
under the ESA to the Service. See 50 C.F.R. § 402.01(b).
3
In addition, Section 7 of the ESA provides that all federal
agencies must take steps to ensure that any actions they
authorize, fund, or carry out are “not likely to jeopardize the
continued existence of any endangered species or threatened
species or result in the destruction or adverse modification” of
designated critical habitat. 16 U.S.C. § 1536(a)(2). The
Special Rule does not purport to affect any obligations under
Section 7 with respect to the polar bear.
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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, Section 4(d) of the ESA provides:
[W]henever any species is listed as a threatened
species . . . the Secretary shall issue such
regulations as he deems necessary and advisable to
provide for the conservation of such species. The
Secretary may by regulation prohibit with respect to
any threatened species any act prohibited under
section 9(a)(1), in the case of fish or wildlife.
. . .
Id. § 1533(d). Section 4(d) of the ESA thus authorizes the
Service to extend any or all of the Section 9 take prohibitions,
as well as other necessary protective measures, to any
threatened species.
Pursuant to this section, the Secretary of the Interior has
issued a general regulation that extends all of the Section 9
take prohibitions to all threatened species. See 50 C.F.R.
§ 17.31(a). However, this regulation provides that where the
agency issues a special rule for a particular species pursuant
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to Section 4(d), that special rule “will contain all the
applicable prohibitions and exceptions” and “none of the
provisions of [paragraph (a)] . . . will apply.” Id.§ 17.31(c). Accordingly, a special rule for a particular
threatened species supersedes the general rule that applies to
all threatened species.
2. MMPA
The MMPA has governed the management of polar bear
populations in the United States since 1972. Congress enacted
the MMPA to preserve and replenish marine mammal populations.4
See 16 U.S.C. § 1361(2). The MMPA imposes a general moratorium
on the taking and import of marine mammals and marine mammal
products. See id. § 1371(a). Under the MMPA, the term “take”
is defined as “to harass, hunt, capture, or kill, or attempt to
harass, hunt, capture, or kill any marine mammal.” Id.
§ 1362(13).
Like the ESA, the MMPA provides some limited exceptions to
its moratorium on taking marine mammals. The Secretary may
issue permits authorizing the incidental, but not intentional,
taking of a marine mammal while engaging in an otherwise lawful
activity, see id. § 1371(a)(5)(A)(i), provided such take “will
4
The Secretary of the Interior has jurisdiction over most
marine mammals covered by the MMPA, including the polar bear.
16 U.S.C. § 1362(12)(A)(ii). The Secretary of the Interior has
generally delegated his duties under the MMPA to the Service.
See 50 C.F.R. § 403.02(f).
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have a negligible impact” on the species, id. § 1371(a)(5),
(D)(i)(I).
3. NEPA
Congress enacted NEPA for two purposes: (1) to inform
agency decision-makers of the significant environmental effects
of proposed major federal actions and (2) to inform the public
so that they “may also play a role in both the decisionmaking
process and the implementation of that decision.” Robertson v.
Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). To
achieve these goals, NEPA requires every federal agency to
prepare an EIS for all “major Federal actions significantly
affecting the quality of the human environment.” 42 U.S.C.
§ 4332(2)(C). “Major federal actions” are defined by regulation
as “new or revised agency rules, regulations, plans, policies or
procedures.” 40 C.F.R. § 1508.18(a).
An EIS must contain a detailed statement of:
(1) the environmental impact of the proposed action;
(2) any adverse environmental effects that cannot be
avoided should the proposed action be
implemented;
(3) alternatives to the proposed action;
(4) the relationship between local short-term uses of
the environment and the maintenance and
enhancement of long-term productivity; and
(5) any irreversible and irretrievable commitments of
resources that would be involved in the proposed
action should it be implemented.
42 U.S.C. § 4332(2)(C). Among other things, the agency must
compare the environmental effects of its proposed action and
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other reasonable alternatives against a baseline of “no action.”
40 C.F.R. § 1502.14(d). In addition, every EIS must be made
available for public review and comments, and the agency is
required to consider and respond to all comments it receives.
Id. § 1503.1, .4.
NEPA’s implementing regulations establish guidelines for
determining whether and when to prepare an EIS. First, the
agency must determine whether the proposed action is the type
for which an EIS is normally required or the type for which an
EIS is normally not required.5 Id. § 1501.4(a). If the proposed
action falls into neither category, the agency must prepare an
environmental assessment (“EA”). Id. § 1501.4(b).
An EA is a “concise public document” that serves to
“provide sufficient evidence and analysis for determining
whether to prepare an environmental impact statement . . .” Id.
§ 1508.9(a)(1). An EA must include “brief discussions of the
need for the proposal, of alternatives [to the proposed action]
. . . , of the environmental impacts of the proposed action and
5
Under NEPA, all agencies must promulgate regulations that
specify (a) typical classes of actions which normally will
require an EIS; (b) typical classes of actions which normally
require neither an EIS nor an EA (“categorical exclusions”); and
(c) typical classes of actions which normally require an EA but
not necessarily an EIS. 40 C.F.R. § 1507.3(b)(2). The
Department of the Interior has adopted regulations for the
implementation of NEPA, including specified categorical
exclusions. See generally 43 C.F.R. § 46.10-.450; see also id.§ 46.210 (listing categorical exclusions).
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alternatives, and a listing of agencies and persons consulted.”
Id. § 1508.9(b). If after preparing an EA the agency determines
an EIS is not required and the proposed action will not have a
significant effect on the human environment, the agency must
issue a Finding of No Significant Impact (“FONSI”). Id.
§ 1501.4(e); see also id. § 1508.13.
B. Factual and Procedural Background
On May 15, 2008, the Service published its final rule
listing the polar bear as a threatened species under the ESA
throughout its range. See generally 73 Fed. Reg. at 28,212.
Concurrent with the Listing Rule, the agency also published a
special rule for the polar bear pursuant to Section 4(d) of the
ESA. See generally Special Rule for the Polar Bear, Interim
Final Rule, 73 Fed. Reg. 28,306 (May 15, 2008) (“Interim Final
Special Rule”); see also AR4D 8104-17.6 The Secretary made this
Interim Final Special Rule effective immediately. AR4D 8115.
Following a 60-day comment period, on December 16, 2008, the
Secretary replaced the Interim Final Special Rule with a
substantially similar final rule for the polar bear. See 73
Fed. Reg. at 76,249; see also AR4D 12925-45. The Service’s
6
The facts in this background section are excerpted from the
administrative record for the final Special Rule. Citations to
the administrative record for the final Special Rule are
abbreviated “AR4D.”
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final Special Rule for the polar bear was subsequently codified
at 50 C.F.R. § 17.40(q).
The agency’s final Special Rule extends all of the take
prohibitions available under Section 9 of the ESA to the polar
bear, with two exceptions. First, the rule provides that none
of these prohibitions will apply to any activity that is already
authorized or exempted under the MMPA, the Convention on
International Trade in Endangered Species of Wild Fauna and
Flora, Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243
[hereinafter “CITES”], or both, provided that the person
carrying out the activity has complied with all applicable terms
and conditions. See AR4D 12945; 50 C.F.R. § 17.40(q)(2). In
other words, under the Service’s Special Rule for the polar
bear, any activity that is already permitted or exempted under
the MMPA or CITES will not require additional authorization
under the ESA.
The Service determined that this exception is appropriate
because polar bear populations in the United States were
effectively managed and protected under the MMPA and CITES for
thirty years prior to the publication of the Listing Rule. See
AR4D 12938. Indeed, the agency noted, “none of the activities
currently regulated under the MMPA and CITES are factors that
threaten the polar bear throughout all or a significant portion
of its range.” AR4D 12938. Further, after comparing their
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relevant provisions, the agency found that “[m]any provisions
. . . under the MMPA and CITES are comparable to or stricter
than similar provisions under the ESA, including the definitions
of take, penalties for violations, and use of marine mammals.”
AR4D 12937. Accordingly, the Service concluded that an
additional overlay of ESA authorization procedures for
activities currently permitted under the existing regulatory
regime is not necessary or advisable to provide for the
conservation of the polar bear:
The comparable or stricter provisions of the MMPA and
CITES, along with the application of the ESA
regulations at 50 CFR 17.31 and 17.32 for any activity
that has not been authorized or exempted under the
MMPA and CITES . . . , address those negative effects
on polar bears that can foreseeably be addressed under
sections 9 and 10 of the ESA. It would not contribute
to the conservation of the polar bear to require an
unnecessary overlay of redundant authorization
processes that would otherwise be required under the
general ESA threatened species regulations at 50 CFR
17.31 and 17.32.
AR4D 12938.
Second, the Service’s Special Rule provides that none of
the ESA’s Section 9 prohibitions will apply to any taking of
polar bears that is incidental to, but not the purpose of,
carrying out an otherwise lawful activity, unless that taking is
caused by an activity occurring within the current range of the
polar bear in the United States. See AR4D 12945; 50 C.F.R.
§ 17.40(q)(4). In other words, under the Service’s Special
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Rule, an “incidental take” of a polar bear that is not otherwise
authorized under the MMPA and is caused by an activity occurring
within the range of the polar bear will be considered a
prohibited taking under the ESA and will be subject to penalties
under both statutes. By contrast, an unauthorized incidental
take of a polar bear caused by an activity occurring outside the
current range of the polar bear will not be considered a
prohibited taking under the ESA and will only be subject to
penalties under the MMPA.
In support of this provision, the Service explained that
for activities occurring within the polar bear’s range, “overlay
of the incidental take prohibitions under [the ESA] is an
important component of polar bear management because of the
timing and proximity of potential takes of polar bears.” AR4D
12937. As the agency described, future oil and gas development
activities in Alaska may result in unauthorized incidental takes
of polar bears that could be reduced or avoided by imposing
additional penalties under the ESA. AR4D 12937-38. By
contrast, the Service determined that an overlay of additional
penalties and permitting procedures outside the range of the
polar bear is “not necessary for polar bear management and
conservation.” AR4D 12938. “If it is shown that a particular
activity conducted outside the current range of the species is
reasonably likely to cause the incidental taking of a polar
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bear, whether lethal or nonlethal,” the agency explained, “any
incidental take that occurs is a violation of the MMPA” and,
accordingly, will be subject to “the full array of the statute’s
civil and criminal penalties.” AR4D 12930-31.
In sum, the Service generally characterized its Special
Rule as follows:
Under this final special rule, if an activity is
authorized or exempted under the MMPA or CITES, we
will not require any additional authorization under
the ESA regulations associated with that activity.
However, if the activity is not authorized or exempted
under the MMPA or CITES and the activity would result
in an act that would be otherwise prohibited under the
ESA regulations at 50 CFR 17.31, the prohibitions of
§ 17.31 apply, and permits would be required under 50
CFR 17.32 of our ESA regulations. The special rule
further provides that any incidental take of polar
bears that results from activities that occur outside
of the current range of the species is not a
prohibited act under the ESA.
AR4D 12927. Accordingly, pursuant to Section 4(d) of the ESA,
the Service concluded that this complementary management regime
is “necessary and advisable to provide for the conservation of
the polar bear.” AR4D 12938.
With respect to the primary threat identified in the
Listing Rule – i.e., loss of sea ice habitat and related effects
– the agency concluded that no additional ESA protections are
necessary or advisable because that threat “would not be
alleviated by the additional overlay of provisions in the
general threatened species regulations . . . or even the full
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application of the provisions in section 9 and 10 of the ESA.”
AR4D 12938. Indeed, the Service concluded, “[n]othing within
our authority under section 4(d) of the ESA, above and beyond
what we have already required in this final special rule, would
provide the means to resolve this threat.” AR4D 12938. In
response to comments, the Service further explained, citing a
policy memorandum issued by its Director on May 14, 2008, that
“the future indirect impacts of individual [greenhouse gas]
emitters cannot be shown to result in ‘take’ based on the best
available science at this time.” AR4D 12942.
In December 2008, plaintiffs Center for Biological
Diversity, Natural Resources Defense Council, and Greenpeace
(collectively, “CBD”) initiated an action challenging the final
Special Rule.7 CBD Third Am. Compl. ¶ 15, Docket No. 30.8
7
CBD initially filed suit in the Northern District of
California to compel the Service to issue its final Listing Rule
for the polar bear. See Ctr. for Biological Diversity, et al.
v. Kempthorne, et al., No. 08-1339 (N.D. Cal. Mar. 10, 2008).
After the Service issued its Listing Rule and Interim Final
Special Rule on May 15, 2008, the case was subsequently
transferred and assigned a new case number in this Court. See
Ctr. for Biological Diversity, et al. v. Salazar, et al., No.
08-2113 (D.D.C. Dec. 8, 2008). CBD’s Third Amended Complaint,
filed in this Court, includes claims for relief with respect to
the Listing Rule as well as both the Interim Final Special Rule
and the final Special Rule. Plaintiffs have abandoned as moot
their claims for relief with respect to the Interim Final
Special Rule. See Plfs. Reply at 35, n.24. On June 30, 2011,
this Court entered final judgment with respect to CBD’s Listing
Rule claims. See Order, Docket No. 267. Accordingly, only
those claims for relief relating to the final Special Rule
remain to be resolved.
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Plaintiff Defenders of Wildlife initiated a similar action in
January 2009. See generally Defenders of Wildlife v. U.S. Dep’t
of the Interior, et al., No. 09-153 (D.D.C. Jan. 27, 2009).
These cases have been consolidated before this Court, along with
nine related actions, pursuant to an order of the Judicial Panel
on Multi-District Litigation.9 See generally Certified Copy of
Transfer Order, Docket No. 1.
Plaintiffs jointly filed their motion for summary judgment
on December 4, 2009. See generally Plaintiffs’ Joint Motion for
Summary Judgment on the § 4(d) Rule, Docket No. 135 (“Plfs.
Mot.”). The federal defendants filed their cross-motion for
summary judgment on February 2, 2010. See generally Federal
Defendants’ Combined Opposition and Cross-Motion for Summary
Judgment on § 4(d) Rule Claims, Docket No. 156 (“Fed. Defs.
Mot.”). The Court also permitted several parties to intervene
on behalf of the federal defendants in support of the Special
Rule. See Stipulation and Order Regarding Intervention, Docket
8
Unless otherwise specified, all references to pleadings,
proceedings, hearings, opinions, and orders can be found on the
Misc No. 08-764 docket.
9
In addition to the five actions challenging the Listing
Rule, which this Court has resolved, the four remaining actions
in this MDL challenge the Service’s refusal to issue permits for
importing sport-hunted polar bear trophies under the MMPA.
These four actions have been briefed separately from the Special
Rule cases; therefore, the Court does not address the import ban
challenges here.
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No. 33, at 4-5. Defendant-intervenors grouped themselves as
follows for briefing purposes:
 Alaska Oil and Gas Association, Arctic Slope Regional
Corporation, and the State of Alaska (collectively,
“Alaskan Intervenors”);10
 American Petroleum Institute, Edison Electric Institute,
National Petrochemical and Refiners Association, Chamber
of Commerce of the United States of America, National
Mining Association, National Association of
Manufacturers, and American Iron and Steel Institute
(collectively, “Trade Association Intervenors”).11
The various defendant-intervenors filed their cross-motions for
summary judgment on March 26, 2010.
10
The Alaskan Intervenors jointly filed a cross-motion for
summary judgment. See generally Alaskan Defendant-Intervenors’
Cross-Motion for Summary Judgment on § 4(d) Rule Claims and in
Opposition to Plaintiffs’ Motion for Summary Judgment on Special
Rule Claims, Docket No. 186 (“Alaskan Def-Int. Mot.”). In
addition, two of the individual Alaskan Intervenors filed
separate motions for summary judgment and supplemental memoranda
in support. See generally Defendant-Intervenor State of
Alaska’s Supplemental Memorandum of Points and Authorities
Supporting Its and Alaskan Defendant-Intervenors’ Cross-Motions
for Summary Judgment and Opposing Plaintiffs’ Motion for Summary
Judgment on § 4(d) Rule Claims, Docket No. 188, (“State of
Alaska Def-Int. Mot.”); Statement of Points and Authorities in
Support of Intervenor-Defendant Arctic Slope Regional
Corporation’s Cross-Motion for Summary Judgment on § 4(d) Rule
Issues and Opposition to the Motion for Summary Judgment Filed
by CBD, et al., Docket Nos. 182-83 (“ASRC Def-Int. Mot.”).
11
The Trade Association Intervenors did not file a cross-
motion for summary judgment but instead submitted supplemental
memoranda in support of the federal defendants’ cross-motion for
summary judgment. See generally Memorandum of the National
Trade Associations in Opposition to Plaintiffs’ Motion for
Summary Judgment on the § 4(d) Rule, and in Support of Federal
Defendants’ Cross-Motion for Summary Judgment on the § 4(d)
Rule, Docket Nos. 184-85 (“Trade Assoc. Def-Int. Mem.”).
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The Court heard arguments on plaintiffs’ Special Rule
claims at a motions hearing held on April 13, 2011. Following
this hearing, the Court ordered the parties to file supplemental
briefs on the question of remedy and related issues. See Minute
Orders dated Apr. 15, 2011 and Apr. 19, 2011. The parties’
cross-motions for summary judgment are now ripe for
determination by the Court.
II. STANDARD OF REVIEW
Agency action challenged pursuant to the ESA is subject to
judicial review under the APA. Cabinet Mountains Wilderness/
Scotchman’s Peak Grizzly Bears v. Peterson, 685 F.2d 678, 685-86
(D.C. Cir. 1982). Under APA review, federal agency actions are
to be held unlawful and set aside where they are “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). To make this
finding, a court must determine whether the agency “considered
the factors relevant to its decision and articulated a rational
connection between the facts found and the choice made.”
Keating v. FERC, 569 F.3d 427, 433 (D.C. Cir. 2009) (citing
Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462
U.S. 87, 105 (1983)).
The standard of review under the APA is a narrow one.
Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 416
(1971). The court is not empowered to substitute its judgment
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for that of the agency. Id. This deferential standard does
not, however, shield the agency from a “thorough, probing, in-
depth” review. Id. at 415. Administrative action must be
invalidated as arbitrary where the agency
relied on factors which Congress has not intended it
to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the
agency, or is so implausible that it could not be
ascribed to a difference in view or the product of
agency expertise.
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463
U.S. 29, 43 (1983). This determination must be made solely on
the basis of the record before the agency when it made its
decision. Camp v. Pitts, 411 U.S. 138, 142 (1973).
Where the court reviews an agency’s interpretation of a
statute it is charged with administering, the Supreme Court’s
opinion in Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc. provides the appropriate framework of review. 467
U.S. 837 (1984). The first step in this review process is for
the court to determine “whether Congress has directly spoken to
the precise question at issue.” Id. at 842. “If the intent of
Congress is clear, that is the end of the matter; for the court,
as well as the agency, must give effect to the unambiguously
expressed intent of Congress.” Id. at 842-43. If the court
concludes that the statute is either silent or ambiguous with
respect to the precise question at issue, the second step of the
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court’s review process is to determine whether the
interpretation proffered by the agency is “based on a
permissible construction of the statute.” Id. at 843. The
court must defer to agency interpretations that are not
“procedurally defective, arbitrary or capricious in substance,
or manifestly contrary to the statute.” United States v. Mead,
533 U.S. 218, 227 (2001) (citing Chevron, 467 U.S. at 843-44).
An agency is generally not entitled to deferential review,
however, in interpreting NEPA or its regulations. See Citizens
Against Rails-to-Trails v. Surface Transp. Bd., 267 F.3d 1144,
1150 (D.C. Cir. 2001) (“Because NEPA’s mandate is addressed to
all federal agencies, the [Surface Transportation Board’s]
determination that NEPA is inapplicable . . . is not entitled to
the deference that courts must accord to an agency’s
interpretation of its governing statute.”).
III. DISCUSSION
Plaintiffs argue that the final Special Rule for the polar
bear is arbitrary, capricious, and contrary to both the ESA and
NEPA. Before reaching the merits of plaintiffs’ claims, the
Court must first address a threshold defense raised by the
Alaskan Intervenors. The Alaskan Intervenors argue that
plaintiffs’ ESA and NEPA claims must be dismissed, pursuant to
Federal Rule of Civil Procedure 12(b)(6), because plaintiffs
- 21 -
have not challenged a reviewable final agency action, as
required by the APA.12 The Court turns now to this defense.
A. Whether Plaintiffs’ Claims Must Be Dismissed
The Alaskan Intervenors contend that this Court must
dismiss plaintiffs’ ESA and NEPA claims because the provisions
of the Special Rule that plaintiffs have challenged are not
“final agency action” for the purposes of APA review. See 5
U.S.C. § 704 (“Agency action made reviewable by statute and
final agency action for which there is no other adequate remedy
in a court are subject to judicial review.” (emphasis added));
see also Fund for Animals v. U.S. Bureau of Land Mgmt., 460 F.3d
13, 18 n.4 (D.C. Cir. 2006) (failure to satisfy the APA’s final
agency action requirement warrants dismissal for failure to
state a claim upon which relief may be granted).
The Supreme Court in Bennett v. Spear established a two-
pronged test for determining the finality of an agency action:
(1) the action must mark “the consummation of the agency’s
decisionmaking process”; and (2) the action must be the type by
which “rights or obligations have been determined” or from which
“legal consequences will flow.” 520 U.S. at 177-78. According
to the Alaskan Intervenors, the only portion of the Special Rule
that satisfies this test is 50 C.F.R. § 17.40(q)(1), the
12
The federal defendants have not joined in the Alaskan
Intervenors’ defense.
- 22 -
provision that actually extends the ESA’s Section 9 take
prohibitions to the polar bear. However, the Alaskan
Intervenors argue, that provision is not at issue in this case.
Instead, the Alaskan Intervenors assert that plaintiffs have
only challenged the specific exceptions that are set out in 50
C.F.R. § 17.40(q)(2) and (q)(4). These provisions constitute
inaction on the part of the agency, the Alaskan Intervenors
argue, because they merely preserve the existing legal framework
of the MMPA and CITES. Accordingly, the Alaskan Intervenors
conclude, the challenged portions of the Service’s Special Rule
are not actions from which “legal consequences will flow” and do
not constitute final agency action. See Alaskan Def-Int. Mot.
at 16-17.
The Court finds this argument unpersuasive. Plaintiffs
have challenged the final Special Rule for the polar bear, which
constitutes final agency action under any reasonable reading of
the term. It is undisputed that the final Special Rule for the
polar bear represents the consummation of the agency’s decision-
making process and, therefore, meets the first prong of the
finality test set forth in Bennett. The Court finds that the
Special Rule also meets the second prong of the Bennett test.
Agency regulations provide that where the Service issues a
special rule for a particular threatened species, as it did
here, the effect of that rule is to supersede the general
- 23 -
regulations that otherwise apply to threatened species. See 50
C.F.R. § 17.31(c). The legal consequence of the Service’s
Special Rule, therefore, is a new regulatory regime governing
management of the polar bear under the ESA. See Bennett, 520
U.S. at 178 (finding that incidental take statement constituted
final agency action where it “[altered] the legal regime to
which the action agency is subject.”).13 Accordingly, the Court
concludes that the Special Rule for the polar bear satisfies
both prongs of the Bennett test for finality, and it declines to
dismiss plaintiffs’ claims on these grounds.
The Court turns now to the merits of plaintiffs’ ESA claim.
B. Plaintiffs’ ESA Claim
In its Special Rule for the polar bear, the Service found
that it is necessary and advisable to extend Section 9 take
prohibitions to the polar bear, but that it is not necessary for
the conservation of the species to apply those prohibitions to
13
Further, the Court cannot agree that the Special Rule does
nothing more than preserve the regulatory status quo. As the
Service described, under this Special Rule, “if [an] activity is
not authorized or exempted under the MMPA or CITES and the
activity would result in an act that would be otherwise
prohibited under the ESA regulations at 50 CFR 17.31, the
prohibitions of § 17.31 apply, and permits would be required
under 50 CFR 17.32 of our ESA regulations.” AR4D 12927. For
activities occurring within the species’ range, the Special Rule
overlays ESA penalties and permitting procedures on top of the
existing penalties and permitting procedures under the MMPA.
The Service’s Special Rule therefore expressly provides for
regulatory mechanisms that are not currently available under the
MMPA and CITES.
- 24 -
(1) activities that are currently authorized or exempted under
the MMPA or CITES; or (2) activities that are occurring outside
the range of the species but may incidentally impact polar
bears. The Service determined that extending limited additional
ESA protections to the polar bear is particularly appropriate in
light of the comparable protections available under the MMPA,
which apply to activities that impact polar bears regardless of
where those activities occur.
Plaintiffs claim that the Service’s Special Rule
fundamentally violates the ESA because it fails to provide
sufficiently for the conservation of the polar bear.
Plaintiffs’ claim relies in large part on two threshold
assumptions: first, that the plain language of the ESA requires
the agency to “provide for the conservation” of threatened
species; and second, that the Service cannot “reduce” the
protections that would automatically apply to the polar bear
under 50 C.F.R. § 17.31, which extends all Section 9 take
prohibitions to all threatened species, without demonstrating a
valid conservation basis for diverging from that default rule.
The Court will address each of these threshold issues in turn.
- 25 -
1. Whether the Service’s Special Rule Must Be
Necessary and Advisable to Provide for the
Conservation of the Polar Bear
Section 4(d) of the ESA reads, in relevant part:
[W]henever any species is listed as a threatened
species . . . the Secretary shall issue such
regulations as he deems necessary and advisable to
provide for the conservation of such species. The
Secretary may by regulation prohibit with respect to
any threatened species any act prohibited under
section 9(a)(1), in the case of fish or wildlife.
16 U.S.C. § 1533(d). Plaintiffs assert that the plain language
of this section establishes a strict standard that all special
rules promulgated under Section 4(d) must be “necessary and
advisable to provide for the conservation of [the] species.”
See Plfs. Mot. at 29.
In accordance with controlling D.C. Circuit precedent, the
Court must reject plaintiffs’ plain-language reading of Section
4(d), and it finds that the statute is ambiguous on this point.
See Sweet Home Chapter of Cmties. for a Great Oregon v. Babbitt,
1 F.3d 1, 8 (D.C. Cir. 1993), modified on other grounds on
reh’g, 17 F.3d 1463 (D.C. Cir. 1994), rev’d on other grounds,
515 U.S. 687 (1995) (“[T]here is a reasonable reading of
§ 1533(d) that would not require [the Service] to issue formal
‘necessary and advisable’ findings when extending the
prohibitions to threatened species. . . . The second sentence
gives [the Service] discretion to apply any or all of the
[Section 9] prohibitions to threatened species without obliging
- 26 -
it to support such actions with findings of necessity. Only the
first sentence of § 1533(d) contains the ‘necessary and
advisable’ language and mandates formal individualized
findings.”). However, in its Special Rule, the Service in fact
adopted the standard urged by plaintiffs: “[T]he regulations
promulgated under section 4(d) of the ESA provide the Secretary
the discretion to determine what prohibitions, exemptions, or
authorizations are necessary and advisable for a species, so
long as the regulation provides for the conservation of that
species.” AR4D 12937 (emphasis added). Indeed, the Service
premised its Special Rule on a finding that the rule is
necessary and advisable to provide for the conservation of the
polar bear.14
The Court finds that the Service’s assessment of its
obligations under Section 4(d), as set forth in its Special Rule
for the polar bear, constitutes a reasonable and permissible
interpretation of the ESA. Accordingly, the Court upholds the
14
In their briefs, the federal defendants contend that the
Service’s Special Rule falls within the agency’s broad
discretionary authority under the second sentence of Section
4(d) and, therefore, the Service was not required to find that
its Special Rule is necessary and advisable for the conservation
of the polar bear. However, this Court can only uphold an
agency decision based on the grounds relied upon by the agency
itself and not the post hoc rationalizations of agency counsel.
See Burlington Truck Lines v. United States, 371 U.S. 156, 168-
69 (1962) (“[A] reviewing court . . . must judge the propriety
of [agency] action solely by the grounds invoked by the
agency.”).
- 27 -
Service’s interpretation under step two of the Chevron
framework, and it will review the Special Rule for the polar
bear pursuant to the “necessary and advisable” standard adopted
by the agency.
2. Whether the Service Must Demonstrate a Valid
Conservation Basis for Departing from 50 C.F.R.
§ 17.31(a)
A second fundamental premise of plaintiffs’ ESA claim is
that the Service cannot “reduce” the protections that would
otherwise apply to the bear under the Service’s general
regulations for threatened species, set forth at 50 C.F.R.
§ 17.31(a), without demonstrating a valid conservation basis for
not applying the default rule. Plaintiffs note that “for more
than 30 years, it has been the Service policy and administrative
practice to extend the ESA’s full protections against take to
threatened species as the most effective approach for ensuring
their conservation.” Plfs. Mot. at 30. Therefore, plaintiffs
argue, any departure from this longstanding practice must have a
valid conservation purpose. See also Plfs. Mot. at 40-41
(“Fundamentally, in order to provide a conservation ‘benefit’ to
the polar bear, the benefits to the polar bear from the Special
Rule must outweigh the benefits of any protections polar bears
would enjoy in the absence of a Special Rule.”).
The Court finds this argument unpersuasive. Plaintiffs are
correct that, in the absence of a special rule, management of
- 28 -
the polar bear under the ESA would be governed by the general
rule set out at 50 C.F.R. § 17.31(a), which extends all of the
Section 9 take prohibitions to all threatened species. However,
section 17.31 also authorizes the Service to issue special rules
for particular species pursuant to Section 4(d). This
regulation provides that where the agency chooses to issue a
special rule, that rule “will contain all the applicable
prohibitions and exceptions” and “none of the provisions of
[paragraph (a)] . . . will apply.” Id. § 17.31(c). Nothing in
the regulation, or in the ESA itself, requires the agency to
demonstrate a conservation basis for not applying the general
regulation at 50 C.F.R. § 17.31(a).
Indeed, courts have recognized that the ESA does not
require regulations protecting threatened species from taking at
all. Section 4(d) itself merely provides that the Secretary
“may . . . prohibit with respect to threatened species any act
prohibited under section 9(a)(1)” (emphasis added). See, e.g.,
Louisiana, ex rel. Guste v. Verity, 853 F.2d 322, 333 (5th Cir.
1988) (“In addition to this mandatory duty [to issue regulations
that are necessary and advisable to provide for the conservation
of the species] . . . , the ESA also provides the Secretary
authority to prohibit by regulation the taking of any threatened
species of fish and wildlife.” (emphasis omitted)); Trout
Unlimited v. Lohn, 559 F.3d 946, 962 n.12 (9th Cir. 2009)
- 29 -
(noting that Section 4(d) does not require regulations
protecting threatened species from taking and that “[t]he
combination of the discretionary ‘may’ and the phrase ‘necessary
and advisable’ grant [the Service] much leeway in crafting
regulations”); Defenders of Wildlife v. Kempthorne, No. 04-1230,
2006 U.S. Dist. LEXIS 71137, at *7-8 (D.D.C. Sept. 29, 2006)
(noting that the Secretary may, but is not required to, extend
prohibitions of Section 9 to threatened species). See also S.
Rep. No. 93-307, at 8 (1973) (“Once an animal is on the
threatened list, the Secretary has an almost infinite number of
options available to him with regard to the permitted activities
for those species. He may, for example, permit taking, but not
importation of such activities, or he may choose to forbid both
taking and importation but allow the transportation of such
species.”).15
15
Plaintiffs rely heavily on the Eighth Circuit’s opinion in
Sierra Club v. Clark, 755 F.2d 608 (8th Cir. 1985), in which the
court held that the Secretary may exercise his discretion to
permit taking of a threatened species only in the “extraordinary
case where population pressures within a given ecosystem cannot
otherwise be relieved.” Id. at 613. The primary question
before the court in that case, however, was whether the Service
could issue regulations under Section 4(d) that authorized sport
hunting of a threatened species. The Eighth Circuit struck down
the Service’s regulation, finding that “the [ESA] on its face
limits the discretion of the Secretary to allow public sport
hunting of threatened species.” Id. at 615. Here, by contrast,
the Service’s Special Rule does not purport to authorize sport
hunting or other regulated taking of polar bears. In fact, it
seeks to limit the taking of polar bears. Therefore, while
- 30 -
Accordingly, the Court finds that the Service was not
required to demonstrate that diverging from the general
regulation at 50 C.F.R. § 17.31(a) is necessary and advisable to
provide for the conservation of the polar bear. Rather, the
relevant question before the Court is whether the Service
reasonably concluded that the specific prohibitions and
exceptions set forth in its Special Rule are necessary and
advisable to provide for the conservation of the polar bear.
The Court turns now to that question.
3. Whether the Service Reasonably Concluded that its
Special Rule Is Necessary and Advisable to
Provide for the Conservation of the Polar Bear
The ESA defines “conservation” as “the use of all methods
and procedures which are necessary to bring any endangered
species or threatened species to the point at which the measures
provided . . . are no longer necessary.” 16 U.S.C. § 1532(emphasis added). Whereas the ESA itself prescribes certain
measures that Congress deemed necessary to provide for the
conservation of endangered species, Congress has generally
delegated to the Secretary of the Interior the responsibility of
determining what measures are necessary for the conservation of
threatened species. See Wildearth Guardians v. Salazar, 741 F.
Supp. 2d 89, 105 (D.D.C. 2010) (“Congress delegated to the
Clark contains language favorable to plaintiffs, its holding is
not on point.
- 31 -
Secretary the authority to determine the extent to which the ESA
protects threatened species.”). In this case, the Service
determined that it is necessary and advisable to extend Section
9 take prohibitions to the polar bear but that it is not
necessary for the conservation of the species to apply those
prohibitions to activities that are currently authorized or
exempted under the MMPA or CITES, or to activities that are
occurring outside the range of the species that may incidentally
impact polar bears.
Plaintiffs contend that the Service’s Special Rule cannot
be necessary and advisable to provide for the conservation of
the polar bear because it does not address the primary threat to
the species from greenhouse gas emissions and the loss of its
sea ice habitat. Specifically, plaintiffs argue that the
Service purposefully chose not to extend the full Section 9 take
prohibitions to the polar bear “in order to . . . exempt
greenhouse gas emissions from the reach of the ESA.” Plfs. Mot.
at 33. Although it is undisputed that the Special Rule does not
address greenhouse gas emissions, the Court is persuaded that
the rule nonetheless survives rational basis review.
As a threshold matter, and contrary to plaintiffs’
assertions, nothing in the Special Rule expressly exempts
greenhouse gas emissions from regulation under the ESA or any
other statute. To the extent the Service discussed greenhouse
- 32 -
gases in the preamble to its Special Rule, the Service noted
that anticipated sea ice losses as a result of greenhouse gas
emissions “would not be alleviated” by an additional overlay of
incidental take provisions under the ESA. AR4D 12938. The
Service further explained in response to comments that “[t]here
is currently no way to determine how the emissions from a
specific action both influence climate change and then
subsequently affect specific listed species, including polar
bears.” AR4D 12942. In other words, because climate modeling
does not currently allow the agency to draw a causal connection
between the greenhouse gas emissions from a specific source and
the impact on a particular polar bear, the Service determined
that it cannot identify when a “take” has occurred for the
purposes of enforcing the incidental take provisions of the ESA
against an individual greenhouse gas emitter. AR4D 12942
(explaining that “the future indirect impacts of individual
[greenhouse gas] emitters cannot be shown to result in ‘take’
based on the best available science at this time.”).
Accordingly, the Service concluded that even extending the full
take prohibitions of the ESA to the polar bear would not
effectively address the threat to the species from sea ice
losses caused by global greenhouse gas emissions.
The administrative record amply supports the Service’s
conclusion. In a memorandum summarizing the most recent
- 33 -
findings on this issue by the leading international climate
science research organizations, the United States Geological
Survey determined that “[i]t is currently beyond the scope of
existing science to identify a specific source of CO2 emissions
and designate it as the cause of specific climate impacts at an
exact location.” AR4D 14144A.02. Similarly, in a memorandum to
the Service, the Environmental Protection Agency Office of Air
and Radiation observed that “[t]he climate change research
community has not yet developed tools specifically intended for
evaluating or quantifying end-point impacts attributable to the
emissions of [greenhouse gases] from a single source, and we are
not aware of any scientific literature to draw from regarding
the climate effects of individual, facility-level [greenhouse
gas] emissions.” AR4D 14336. Based on these findings, the
Service Director issued a subsequent policy memorandum in which
he concluded that “[t]he best scientific data available today do
not allow us to draw a causal connection between [greenhouse
gas] emissions from a given facility and effects posed to listed
species or their habitats.” AR4D 14145. The Department of the
Interior has echoed these conclusions in a similar policy
memorandum:
Given the nature of the complex and independent
processes active in the atmosphere and the ocean
acting on [greenhouse gases], the causal link simply
cannot currently be made between emissions from a
proposed action and specific effects on a listed
- 34 -
species or its critical habitat. Specifically,
science cannot say that a tiny incremental global
temperature rise that might be produced by an action
under consideration would manifest itself in the
location of a listed species or its habitat.
Similarly, any observed climate change effect on a
member of a particular listed species or its critical
habitat cannot be attributed to the emissions from any
particular source. Rather it would be the consequence
of the collective greenhouse gas accumulation from
natural sources and the world-wide anthropogenically
produced [greenhouse gas] emissions since at least the
beginning of the industrial revolution.
AR4D 14328.
Notably, plaintiffs do not contradict this record evidence.
Rather, at bottom, plaintiffs’ complaint appears to be that the
Special Rule pre-emptively forecloses the option of citizen
enforcement actions against greenhouse gas emitters in the
contiguous United States. The citizen suit provision of the ESA
authorizes “any person” to commence a civil suit on her own
behalf to enforce certain provisions of the statute, including
penalties for prohibited takings of listed species. 16 U.S.C.
§ 1540(g). Plaintiffs have expressed a concern that, because no
incidental take of a polar bear that occurs outside the range of
the species will be considered a prohibited taking within the
meaning of the ESA as a result of the Service’s Special Rule, no
grounds exist for citizen enforcement actions against greenhouse
gas emitters operating outside the range of the species in
Alaska. By precluding citizen enforcement in these
circumstances, plaintiffs contend, the Service has unlawfully
- 35 -
eliminated a potentially useful tool for addressing greenhouse
gas emissions and, ultimately, Arctic sea ice loss. However,
although plaintiffs would undoubtedly prefer a broad citizen
enforcement option, the Court is not persuaded that the Special
Rule is arbitrary and capricious on these grounds.16
The Court is satisfied that the Service articulated a
rational basis for the prohibitions and exceptions set forth in
its Special Rule. The Service determined that an additional
overlay of ESA permitting procedures and penalties within the
range of the polar bear is necessary and advisable to provide
for the conservation of the species due to the timing and
proximity of potential takings of polar bears from oil and gas
exploration and development activities in Alaska. Specifically,
the Service concluded that ESA penalties, including citizen
enforcement actions, may be necessary to avoid or otherwise
16
The Court notes that nothing in the Special Rule would
preclude a citizen suit against a greenhouse gas emitter
operating without incidental take authorization within the range
of the polar bear. Moreover, although the MMPA does not contain
a citizen suit provision, nothing in the Special Rule precludes
the agency itself from pursuing an enforcement action against a
greenhouse gas emitter for an unauthorized incidental take of a
polar bear under the MMPA, assuming a violation of that statute
can be identified. Further, nothing in the Service’s Special
Rule prohibits the agency from taking steps to address the
primary threat to the polar bear to the extent feasible within
its authority under other provisions of the ESA. See AR4D 12939
(“[N]othing in this special rule, the MMPA, or CITES precludes
us from developing and implementing a recovery plan or entering
into a treaty or conservation agreement that addresses the
specific threats to the polar bear as outlined in the listing
rule.”).
- 36 -
reduce these direct impacts. The Service found no evidence to
suggest that extending the ESA incidental take provisions
outside the range of the polar bear would produce similar
conservation benefits, however. With respect to these indirect
impacts, in the event that an incidental take can be identified
and attributed to a specific cause originating outside the
species’ range, the Service found that the incidental take
provisions of the MMPA are sufficient to address that
violation.17 AR4D 12938 (“[T]he Service will pursue any
violation under the MMPA for incidental take that has not been
authorized, and all MMPA penalties would apply.”). Accordingly,
the Service concluded that an additional overlay of ESA
incidental take permitting procedures and penalties outside the
range of the polar bear is not necessary for the conservation of
the species. The Court finds that the agency’s conclusions
follow from the evidence before it, and the Service has
articulated a rational basis for limiting the extent of the
17
Plaintiffs have argued that the Special Rule for the polar
bear is arbitrary and capricious and impermissibly overbroad
because it exempts not only greenhouse gases but all activities
outside the range of the polar bear from regulation under the
ESA. The Service concluded, however, that where an unauthorized
incidental take of a polar bear is identified and attributed to
a particular source originating outside the species’ range –
whether it be pesticides, chemical contaminants, or any other
pollutant – the incidental take provisions of the MMPA are
sufficient to address that violation. In the absence of
evidence to the contrary, the Court finds that this conclusion
was rational.
- 37 -
Section 9 take prohibitions to the current range of the polar
bear.
Moreover, the Court finds that the Service reasonably
concluded that a complementary management regime encompassing
the MMPA, CITES, and the ESA is necessary and advisable to
provide for the conservation of the polar bear. The Service
conducted an exhaustive analysis in which it determined that the
MMPA is comparable to, or even stricter than, the take
provisions of the ESA in most respects.18 Accordingly, the Court
finds that the Service reasonably chose to minimize
18
For example, the agency found that the MMPA’s definition of
“harassment” is more stringent than that contained in the ESA
because it encompasses more activities, including “any act of
pursuit, torment, or annoyance that has the ‘potential to injure
. . . or . . . to disturb” a marine mammal, including impacts to
habitat. AR4D 12927 (citing 16 U.S.C. § 1362(18)(A)). Second,
the agency found that the MMPA’s standard for incidental take is
stricter than the standard for incidental take under the ESA
because it requires no more than a “negligible impact” on the
species and its habitat, whereas the ESA requires a finding that
the take will not “appreciably reduce the likelihood of the
survival and recovery of the species in the wild” or, for
Federal actions, that the take will not “jeopardize the
continued existence” of a listed species. See AR4D 12929
(comparing 16 U.S.C. § 1371(a)(5)(A)(I) to 16 U.S.C.
§ 1536(a)(2), 1539(a)(2)(B)). Third, the agency found that
while an ESA jeopardy determination must be made at the species
or subspecies level, the MMPA authorizes the agency to consider
impacts at the smaller “stock” level, which allows for finer-
scale protection. See AR4D 12929-30. Fourth, the agency found
that the procedural requirements for obtaining an incidental
take permit are stricter under the MMPA than under the ESA. See
AR4D 12929. Finally, the agency found that the MMPA authorizes
non-incidental take in fewer circumstances than the ESA. See
AR4D 12932 (comparing 50 C.F.R. § 17.32(a) (allowing permits for
zoological exhibition and educational purposes) to 16 U.S.C.
§ 1374(c)).
- 38 -
administrative redundancy after it determined that doing so
would not sacrifice significant conservation benefits. AR4D
12938 (“It would not contribute to the conservation of the polar
bear to require an unnecessary overlay of redundant
authorization processes that would otherwise be required under
the general ESA threatened species regulations at 50 CFR 17.31
and 17.32.”).19
In sum, having carefully considered the parties’ arguments
and the full administrative record, the Court finds that the
Service reasonably determined that the prohibitions and
exceptions set forth in its Special Rule for the polar bear are
“necessary and advisable to provide for the conservation of
[the] species,” in accordance with Section 4(d) of the ESA.
Particularly in view of Congress’s broad delegation of authority
to the Secretary to determine what measures are necessary and
advisable to provide for the conservation of threatened species,
plaintiffs have failed to carry their burden to demonstrate that
the agency’s conclusions were arbitrary and capricious.
19
Plaintiffs argue that the agency should have left both the
ESA and the MMPA take prohibitions in place, even where they
overlap. Plaintiffs contend that the Secretary “cannot” use the
MMPA as an excuse for not applying ESA protections as well.
Plfs. Mot. at 41-42. The Court finds this argument
unpersuasive. As discussed above, the ESA does not require the
agency to extend Section 9 take prohibitions to threatened
species.
- 39 -
The question at the heart of this litigation – whether the
ESA is an effective or appropriate tool to address the threat of
climate change – is not a question that this Court can decide
based upon its own independent assessment, particularly in the
abstract. The answer to that question will ultimately be
grounded in science and policy determinations that are beyond
the purview of this Court. See Natural Res. Def. Council, Inc.
v. SEC, 606 F.2d 1031, 1053 (D.C. Cir. 1979) (noting that the
scope of the court’s review of an agency’s policy determinations
is “limited to ensuring that the [agency] has adequately
explained the facts and policy concerns it relied on and to
satisfying ourselves that those facts have some basis in the
record”); Ethyl Corp. v. EPA, 541 F.2d 1, 36 (D.C. Cir. 1976)
(“[The court] must look at the decision not as the chemist,
biologist or statistician that [it is] qualified neither by
training nor experience to be, but as a reviewing court
exercising [its] narrowly defined duty of holding agencies to
certain minimal standards of rationality.”). The question this
Court must decide is whether the agency has articulated a
rational basis for the protections set forth in its Special Rule
for the polar bear. For the reasons set forth above, the Court
finds that the Service has done so. Accordingly, with respect
to plaintiffs’ ESA claim, the Court DENIES plaintiffs’ motion
- 40 -
for summary judgment and GRANTS the federal defendants’ and
defendant-intervenors’ motions for summary judgment.
The Court turns now to plaintiffs’ NEPA claim.
C. Plaintiffs’ NEPA Claim
NEPA requires every federal agency to prepare an EIS for
all “major Federal actions significantly affecting the quality
of the human environment.” 42 U.S.C. § 4332(2)(C); see also 40
C.F.R. § 1501.4. “Major Federal actions” are defined by
regulation as “new or revised agency rules, regulations, plans,
policies, or procedures.” 40 C.F.R. § 1508.18(a) (emphasis
added). Nonetheless, it is undisputed that the Service
conducted no NEPA analysis for its Special Rule for the polar
bear. Plaintiffs contend that this omission was unlawful.
The federal defendants raise two arguments in defense of
the agency’s failure to comply with NEPA. First, the federal
defendants contend that rules promulgated pursuant to Section
4(d) of the ESA are generally exempt from NEPA as a matter of
law, relying on long-standing Service policy and on an
unpublished district court opinion from the Northern District of
California. Second, the federal defendants contend that even if
these special rules are not generally exempt from NEPA, the
Special Rule for the polar bear in particular is not a major
Federal action within the meaning of the statute and, therefore,
- 41 -
NEPA does not apply to that rule. The Court will address each
of these arguments in turn.
1. Whether Rules Promulgated Pursuant to Section
4(d) of the ESA Are Exempt from NEPA as a Matter
of Law
According to the Service, its Special Rule for the polar
bear is “exempt from NEPA procedures.” AR4D 12945. The Service
assessed its duties under NEPA in the preamble to its Special
Rule:
In 1983, upon recommendation of the Council on
Environmental Quality, the Service determined that
NEPA documents need not be prepared in connection with
regulations adopted pursuant to Section 4(a) of the
ESA. The Service subsequently expanded this
determination to section 4(d) rules. A section 4(d)
rule provides the appropriate and necessary
prohibitions and authorizations for a species that has
been determined to be threatened under section 4(a) of
the ESA. NEPA procedures would confuse matters by
overlaying its own matrix upon the section 4 decision-
making process. The opportunity for public comment –
one of the goals of NEPA – is also already provided
through section 4 rulemaking procedures. This
determination was upheld in Center for Biological
Diversity v. U.S. Fish and Wildlife Service, No. 04-
04324 (N.D. Cal. 2005).
AR4D 12945.
The federal defendants contend that the Service reasonably
relied on its own policy guidance in reaching this conclusion.
The Service’s 1983 policy provides:
The Fish and Wildlife Service has determined that
Environmental Assessments, as defined by the National
Environmental Policy Act of 1969, need not be prepared
in connection with regulations adopted pursuant to
Section 4(a) of the Endangered Species Act of 1973, as
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amended. These documents will no longer be prepared
for such routine actions.20
48 Fed. Reg. 49,244 (Oct. 25, 1983). This policy specifies that
Section 4(a) actions include “listings, delistings,
reclassifications, and Critical Habitat designations.” 48 Fed.
Reg. at 49,244.
The federal defendants further contend that the Service
reasonably relied on the Northern District of California’s
unpublished opinion in Center for Biological Diversity v. U.S.
Fish and Wildlife Service, in which the district court held that
special rules promulgated pursuant to Section 4(d) of the ESA
are exempt from NEPA as a matter of law. No. 04-4324, 2005 WL
2000928, at *12 (N.D. Cal. Aug. 19, 2005). In Center for
Biological Diversity, the court upheld the Service’s decision
not to conduct a NEPA analysis prior to issuing a special rule
for the California tiger salamander under Section 4(d) of the
ESA. 2005 WL 2000928, at *12. Recognizing the Service’s long-
standing policy of exempting its listing decisions under Section
4(a) from NEPA review, the court held that rules promulgated
pursuant to Section 4(d) are also exempt from NEPA. Id. The
court found that this exemption was appropriate because a
20
This policy also states that it is based on recommendations
from the Council on Environmental Quality (“CEQ”), NEPA’s
implementing agency, which determined that “Section 4 listing
actions are exempt from NEPA review ‘as a matter of law.’” 48
Fed. Reg. at 49,244.
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special rule is “only triggered upon the listing” of a species
as threatened, and thus falls “within the scope” of a listing
decision under Section 4(a). Id.
This Court declines to recognize a broad exemption from
NEPA for rules promulgated pursuant to Section 4(d) on the
grounds put forward by the agency. In particular, the Court
rejects the federal defendants’ invitation to follow Center for
Biological Diversity. Although Center for Biological Diversity
appears to be the only case addressing the applicability of NEPA
to rules promulgated under Section 4(d), that unpublished
decision is not binding on this Court, and the Court does not
find its reasoning persuasive.
In reaching its conclusion, the Center for Biological
Diversity court primarily deferred to the Service, noting that
courts must defer to an agency’s reasoned interpretation of its
own regulations – here, the agency’s 1983 policy guidance. 2005
WL 2000928, at *12. This Court finds, however, that the Service
is not entitled to deference. As an initial matter, the D.C.
Circuit has recognized that agencies other than CEQ are
generally not entitled to deferential review in determining
whether NEPA applies to a proposed action. See Citizens Against
Rails-to-Trails, 267 F.3d at 1150 (“Because NEPA’s mandate is
addressed to all federal agencies, the [Surface Transportation
Board’s] determination that NEPA is inapplicable . . . is not
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entitled to the deference that courts must accord to an agency’s
interpretation of its governing statute.”). Moreover, courts
are not required to defer to a regulatory interpretation that is
not supported by the regulation itself. See Thomas Jefferson
Univ. v. Shalala, 512 U.S. 504, 512 (1994) (“We must give
substantial deference to an agency’s interpretation of its own
regulations . . . unless it is plainly erroneous or inconsistent
with the regulation.” (emphasis added)). Here, by its terms,
the agency’s 1983 policy guidance only applies to rules
promulgated pursuant to Section 4(a) of the ESA (which it
defines as listings, delistings, reclassifications, and critical
habitat designations). Although the Service claims that the
agency has since “expanded” its 1983 policy to apply to Special
Rules as well as listing rules, AR4D 12945, the Service has
cited no revisions of its policy in the Federal Register, and
this Court is aware of none. Accordingly, the Court finds that
the agency’s 1983 policy provides no substantial basis for a
broad exemption from NEPA for rules promulgated pursuant to
Section 4(d) of the ESA.
It is undisputed that an exemption from NEPA is necessary
and appropriate for listing decisions under Section 4(a) of the
ESA. See Pacific Legal Found. v. Andrus, 657 F.2d 829, 836-37
(6th Cir. 1981) (noting that “the statutory mandate of the ESA
prevents the Secretary from considering the environmental impact
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when listing a species as endangered or threatened [because the]
Secretary is limited to using the best scientific and commercial
data on the five factors listed in [Section 4(a)]”). However,
the Court disagrees with the federal defendants that rules
promulgated pursuant to Section 4(d) of the ESA are necessarily
exempt from NEPA because they are “triggered” by a listing
decision, as the federal defendants contend. Listing decisions
under Section 4(a) trigger all of the protective measures of the
ESA, including consultation requirements under Section 7,
critical habitat designations, recovery plans, take prohibitions
under Section 9, and special rules for threatened species under
Section 4(d). The Court is not persuaded that all of these
measures are therefore exempt from NEPA review. Indeed, this
Court and others have recognized that many of these actions
require NEPA analysis. See, e.g., Ramsey v. Kantor, 96 F.3d
434, 444 (9th Cir. 1996) (finding NEPA analysis required for an
incidental take statement); Fund for Animals v. Hall, 448 F.
Supp. 2d 127, 136-37 (D.D.C. 2006) (finding NEPA analysis
required for Section 7 consultation); Cape Hatteras Access Pres.
Alliance v. U.S. Dep’t of the Interior, 344 F. Supp. 2d 108, 134
(D.D.C. 2004) (finding NEPA analysis required for critical
habitat designation under Section 4 of the ESA).
Finally, the Court finds wholly unpersuasive the federal
defendants’ argument that rules promulgated pursuant to Section
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4(d) are exempt from NEPA review because they are subject to the
notice-and-comment rulemaking procedures of the APA, which
sufficiently furthers the goals of NEPA. See Fed. Defs. Mot. at
47 (citing Douglas Cnty. v. Babbitt, 48 F.3d 1495, 1506 (9th
Cir. 1995) (“We . . . find that NEPA does not apply to the
designation of a critical habitat because the ESA furthers the
goals of NEPA without demanding an EIS.”)). As plaintiffs point
out, under the federal defendants’ approach, any rulemaking
properly carried out under the APA would therefore be exempt
from NEPA, because the APA always requires the opportunity for
public comment before finalizing a rule. An exception of such
staggering breadth would render NEPA meaningless.21
For the foregoing reasons, this Court concludes that rules
promulgated pursuant to Section 4(d) of the ESA are not exempt
from NEPA as a matter of law. Accordingly, the Court declines
to uphold the Service’s decision to forgo NEPA review on these
grounds.
21
The Court further notes that exemptions from NEPA are
available only in certain limited circumstances. First, the
Supreme Court has held that an agency may be exempt from NEPA
where requiring the agency to prepare an EIS would “create an
irreconcilable and fundamental conflict with the Secretary’s
duties” under another statute. Flint Ridge Dev. Co. v. Scenic
Rivers Ass’n, 426 U.S. 776, 788 (1976). The D.C. Circuit has
also recognized an exemption from NEPA where another statute
requires the “functional equivalent” of a NEPA analysis.
Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 384 (D.C.
Cir. 1973); see also Envtl. Def. Fund v. EPA, 489 F.2d 1247,
1256 (D.C. Cir. 1973). The federal defendants do not argue that
either exemption applies in this case.
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2. Whether the Special Rule for the Polar Bear is
Exempt from NEPA Because it is Not a “Major
Federal Action Significantly Affecting the
Quality of the Human Environment”
Whereas in the Special Rule itself the Service relies
wholly on a conclusion that all rules promulgated pursuant to
Section 4(d) are exempt from NEPA as a matter of law, in their
briefs the federal defendants argue that even in the absence of
a general exemption, NEPA nonetheless does not apply to the
Special Rule for the polar bear in particular, because it is not
a “major Federal action significantly affecting the quality of
the human environment.” According to the federal defendants,
the Special Rule is not a “major Federal action” because it does
not change the regulatory status quo. Rather, the federal
defendants assert, the rule largely leaves in place the existing
management regime for the polar bear under the MMPA and CITES,
and it extends only limited additional protections to the polar
bear under the ESA. The federal defendants argue, in addition,
that the Special Rule for the polar bear does not “significantly
[affect] the quality of the human environment” because the rule
will have no impact on the physical environment. The Court
finds that it cannot uphold the Service’s decision to forgo NEPA
review on any of these grounds.22
22
The federal defendants further argue that NEPA does not
apply to the Special Rule for the polar bear because it actually
provides a “conservation benefit” to the species. See Fed. Def.
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Even assuming the federal defendants are correct, the
Special Rule is not therefore exempt from NEPA review. NEPA
requires every federal agency to prepare an EIS for all “major
Federal actions significantly affecting the quality of the human
environment”; however, the statute and its implementing
regulations also dictate the process by which an agency
determines whether an EIS is required. First, the agency must
determine whether its proposed action is the type for which a
full EIS is normally required, or whether it is the type for
which a full EIS is normally not required (a “categorical
exclusion”).23 See 40 C.F.R. § 1501.4(a). If the proposed
action falls into neither category, NEPA directs the agency to
Mot. at 44-45. The Court finds this argument unpersuasive. As
a threshold matter, the D.C. Circuit has not recognized an
exception to NEPA on these grounds. Moreover, the cases cited
by the defendants recognize an exemption from NEPA only where
the action in question provides a general benefit to the
environment. By contrast, the primary focus of the Service’s
Special Rule is to provide for the conservation of the polar
bear. See Catron Cnty. Bd. of Comm’rs v. U.S. Fish and Wildlife
Serv., 75 F.3d 1429, 1437 (10th Cir. 1996) (“While the
protection of species through preservation of habitat may be an
environmentally beneficial goal, [agency] action under ESA is
not inevitably beneficial or immune to improvement by compliance
with NEPA procedure.”).
23
Apart from a conclusory assertion by the Trade Association
Intervenors that the Special Rule for the polar bear falls
within the Department of the Interior’s categorical exclusion
for regulations that are “legal . . . or procedural” or whose
environmental impacts are too “speculative, or conjectural,” no
party has substantially argued that rules promulgated pursuant
to Section 4(d) of the ESA qualify for any categorical exclusion
recognized by agency regulation. See Trade Assoc. Def-Int. Mem.
at 24 (citing 43 C.F.R. § 46.210(i)).
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prepare an EA that provides “sufficient evidence and analysis
for determining whether to prepare an environmental impact
statement or a finding of no significant impact.” Id.§§ 1501.4(b), 1508.9(a)(1). Here, it is undisputed that the
Service did not prepare an EA for its Special Rule.
Accordingly, the Court finds that the Service failed to comply
with its obligations under NEPA. See Catron Cnty. Bd. of
Comm’rs, 75 F.3d at 1437 (“[W]e believe Congress intends that
the Secretary prepare an EA leading to either a FONSI or an
EIS.”).
The Court does not conclude at this stage that the Service
was required to prepare a full EIS. Notwithstanding the
arguments the federal defendants make in their briefs, the
Service itself made no findings as to whether its Special Rule
constitutes a “major Federal action significantly affecting the
human environment.” This Court cannot draw those conclusions on
the agency’s behalf based solely on the arguments of counsel.
See Comm. for Auto Responsibility (C.A.R.) v. Solomon, 603 F.2d
992, 1003 n.46 (D.C. Cir. 1979) (“To ensure the agency’s
understanding of the statutory standards and its adequate
consideration of the problem, we deem it important that the
agency state its reasons for not preparing an EIS.” (emphasis
added)).
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For the foregoing reasons, the Court is persuaded that the
Service erred when it failed to conduct any NEPA review prior to
issuing its Special Rule for the polar bear. 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.
D. Remedy
The APA directs that a court “shall . . . set aside” any
agency action found to be “arbitrary, capricious, . . . or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
Both the Supreme Court and the D.C. Circuit have held that
vacatur is the presumptive remedy for this type of violation.
See Fed. Election Comm’n v. Akins, 524 U.S. 11, 25 (1998) (“If a
reviewing court agrees that the agency misinterpreted the law,
it will set aside the agency’s action and remand the case.”);
Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1084 (D.C. Cir.
2001) (“[A plaintiff who] prevails on its APA claim . . . is
entitled to relief under that statute, which normally will be a
vacatur of the agency’s order.”). Having found that the Service
violated NEPA and the APA in promulgating its final Special Rule
for the polar bear, this Court concludes that vacatur and remand
of the final Special Rule is the appropriate remedy here. See
Am. Bird Conservancy, Inc. v. FCC, 516 F.3d 1027, 1034-35 (D.C.
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Cir. 2008) (vacating and remanding agency decision for NEPA and
ESA violations).
When an agency replaces an existing regulation with a new
regulation, and the Court vacates all or part of the new
regulation, the Court must decide “whether the agency’s prior
regulation continues in effect or whether [its] action leaves no
regulation in effect.” Small Refiner Lead Phase-Down Task Force
v. EPA, 705 F.2d 506, 553 (D.C. Cir. 1983); see also Fund for
Animals v. Norton, 294 F. Supp. 2d 92, 115 (D.D.C. 2003)
(vacating 2003 snowmobile rule and leaving in place the modified
2001 snowmobile rule). Here, the December 16, 2008 final
Special Rule for the polar bear replaced the Interim Final
Special Rule, which was given immediate effect on May 15, 2008.
Although plaintiffs argue that the Interim Final Special Rule
for the polar bear should not be reinstated because it suffers
from the same legal flaws as the final Special Rule, the Court
finds this argument unpersuasive. The Interim Final Special
Rule is not before this Court on review and, therefore, this
Court cannot issue an advisory opinion as to its lawfulness.
Accordingly, the Court concludes that the effect of vacating the
final Special Rule for the polar bear will be to reinstate the
rule previously in force. The May 15, 2008, Interim Final
Special Rule for the polar bear shall remain in effect until
further Order of the Court.
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In their supplemental briefs, the federal defendants note
that the Service is willing to commit to a schedule for
completion of remand. See Fed. Def. Supp. Mem. on Remedy,
Docket No. 263, at 21. The Court agrees that a schedule for
completion of remand is advisable. In light of plaintiffs’
concerns about the Interim Final Special Rule, the Court is
sensitive to the need for remand to be completed as
expeditiously as possible. By no later than November 17, 2011,
the parties are directed to submit a joint proposed timetable to
the Court addressing the length of time within which NEPA review
shall be completed. In the event that the parties are unable to
reach an agreement on a joint recommendation, each party shall
submit an individual recommendation by that time. The Court
shall withhold issuance of its Order vacating and remanding the
final Special Rule to the Service pending resolution of this
issue.
IV. CONCLUSION
For the foregoing reasons, plaintiffs’ motion for summary
judgment is hereby GRANTED IN PART and DENIED IN PART, the
federal defendants’ cross-motion for summary judgment is hereby
GRANTED IN PART and DENIED IN PART and the defendant-
intervenors’ cross-motions for summary judgment are hereby
GRANTED IN PART and DENIED IN PART. This Court shall withhold
its Order vacating and remanding the December 16, 2008, final
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Special Rule pending the resolution of a timetable for the
completion of NEPA review on remand. Upon vacatur of the
December 16, 2008 final Special Rule, the prior May 15, 2008,
Interim Final Special Rule shall remain in effect until further
Order of the Court.
An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
October 17, 2011
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