A federal judge today upheld the George W. Bush administration's decision to list the polar bear as threatened under the Endangered Species Act.

The ruling is a blow to environmental groups that wanted the bear listed as endangered, thereby giving it more protections, and industry groups and others that don't want it listed at all.

U.S. District Judge Emmet Sullivan of the District of Columbia issued a 116-page opinion (pdf) explaining why he granted the federal government's motion for summary judgment.

The designation of the polar bear has been a contentious issue since the U.S. Fish and Wildlife Service first listed the bear as threatened in 2008.

Hanging over the matter is the issue of global warming and its potential effect on the polar bear's habitat. Environmentalists argue that greenhouse gases are to blame and that the ESA could be used to help regulate emissions, an approach the Obama administration opposes.

Sullivan has yet to rule on that question, which is in many ways the key issue in the case.

In today's ruling, Sullivan stressed how constricted judges are when it comes to second-guessing a federal agency's determination.

Under Supreme Court precedent, when the meaning of a statutory phrase -- in this case, the definition of "endangered" in the ESA -- is not easily discernible, government agencies have discretion to interpret the law, within certain boundaries.

Sullivan wrote that he was "persuaded that the listing rule survives this highly deferential standard" and that the plaintiffs challenging the listing "have failed to demonstrate that the agency's listing determination rises to the level of irrationality."

Ultimately, the various parties challenging the listing from both sides constituted "nothing more than competing views about policy and science," Sullivan noted.

As a federal judge Sullivan said he "is not empowered to choose among these competing views. Instead, this court is bound to uphold the agency's determination that the polar bear is a threatened species as long as it is reasonable, regardless of whether there may be other reasonable, or even more reasonable, views."

Initially, Sullivan was not entirely satisfied with the government's explanation as to why the polar bear should be listed as threatened. In November he asked the Obama administration to offer a more detailed analysis ( E&ENews PM, Nov. 4, 2010).

But at a hearing in February, Sullivan hinted that the government had done enough (Greenwire, Feb. 23).

Sullivan nevertheless made it clear in his opinion that he had some sympathy for environmental groups, such as the Center for Biological Diversity, which had argued that the science on global warming could have supported a finding that the bear was endangered.

"Certainly, where global warming has been identified as the primary threat to the polar bear's sea ice habitat and the agency has acknowledged that the global warming trend is unlikely to reverse itself, a conclusion that the species is ... 'in danger of extinction' has undeniable appeal," Sullivan wrote in a footnote.

A Justice Department spokesman welcomed the ruling, saying officials were "pleased that the court agreed with our argument that the Fish and Wildlife Service's decision to list the polar bear as a threatened species under the Endangered Species Act was a reasonable one based on the facts and the science available at the time."

Andrew Wetzler, an attorney with the Natural Resources Defense Council, sought to portray the ruling in a positive light from the perspective of environmentalists, noting that the threatened listing remains intact.

"The most important thing is that the polar bear will keep its protections," he said. "We feel those protections should be slightly stronger than they are now."

M. Reed Hopper, a lawyer from the conservative Pacific Legal Foundation who represented groups that wanted the bear delisted, said Sullivan had deferred too much to the government and "did not apply any independent analysis" in reaching his conclusion.

Sullivan's ruling today did not address what he himself described at a hearing in April as the "elephant in the room" -- the special rule that accompanied the listing that limits the use of the threatened listing to tackle greenhouse gas emissions (Greenwire, April 14).

The so-called 4(d) rule was endorsed by Interior Secretary Ken Salazar when he took office in 2009 while the administration moved ahead with efforts to designate a polar bear habitat (Greenwire, Nov. 24, 2010).

Brendan Cummings, an attorney with the Center for Biological Diversity, said that now the legality of the threatened listing has been resolved, the 4(d) litigation is vital.

"That's the one that has the most important climate policy implications," Cummings said.

Click here (pdf) to read the opinion.

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