## Facts

- In 2008, the U.S. Fish and Wildlife Service (FWS) issued a final rule listing the polar bear as a “threatened” species under the Endangered Species Act (ESA), finding the species was likely to become endangered within the “foreseeable future.”
- To determine the “foreseeable future,” FWS used available climate projections and set a 45-year timeframe based on the period for which it found climate and sea-ice forecasts sufficiently reliable for decisionmaking.
- FWS based its listing decision largely on three considerations: the polar bear’s dependence on sea ice, observed declines in sea ice, and projected continued sea-ice loss tied to climate change.
- In evaluating climate and sea-ice trends, FWS relied on published studies, observations, and modeling, including assessments and reports drawing on Intergovernmental Panel on Climate Change (IPCC) work and other scientific sources.
- FWS reviewed information on 19 identified polar-bear populations but concluded the populations were not sufficiently discrete or distinct to be treated as separate “distinct population segments” for listing purposes.
- Following the listing, regulated parties and governments, along with environmental organizations, filed multiple suits challenging the listing rule as either too protective or not protective enough; the cases were consolidated in the U.S. District Court for the District of Columbia as multidistrict litigation.
- The challengers argued, among other things, that FWS mishandled the administrative record by (a) selecting an unsupported 45-year foreseeability horizon and (b) failing to draw legally required distinctions among populations.
- The district court granted summary judgment to FWS and upheld the listing rule; the challengers appealed to the U.S. Court of Appeals for the District of Columbia Circuit.

## Issues

1. Whether FWS’s decision to list the polar bear as threatened was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law under the Administrative Procedure Act (APA).
2. Whether FWS permissibly interpreted and applied the ESA term “foreseeable future” by using a 45-year timeframe grounded in climate and sea-ice modeling and related scientific evidence.
3. Whether FWS acted unlawfully in declining to treat polar bears as separate distinct population segments based on the record evidence regarding population structure.
4. Whether alleged procedural defects—such as claimed failures to adequately address state input—required setting aside the listing rule.

## Decision

- The D.C. Circuit affirmed the district court’s judgment and upheld the 2008 listing rule.
- The court held that FWS provided a reasoned explanation for listing the polar bear as threatened based on record evidence of sea-ice dependence, sea-ice decline, and projected continued decline due to climate change.
- The court rejected arguments that uncertainty in climate projections and biological modeling made the listing unlawful, noting that a model’s limitations do not alone require remand where the agency explains how it accounted for those limits.
- The court sustained FWS’s 45-year “foreseeable future” determination as a permissible application of the ESA, supported by the administrative record and tied to the time horizon of available climate projections.
- The court upheld FWS’s decision not to divide the species into distinct population segments, deferring to FWS’s technical judgment based on the information before it.
- The court found no basis to overturn the listing based on the procedural objections raised in the appeal.

## Legal Principles

- Under APA arbitrary-and-capricious review, courts give substantial deference to agency decisions involving scientific and technical matters and do not replace the agency’s weighing of competing data.
- The ESA requires use of the “best available scientific and commercial data,” not certainty; an agency may act in the face of uncertainty if it explains its reasoning and connects its conclusions to the record.
- The presence of limits or imperfections in predictive models is not, by itself, a reason to set aside an agency decision that reasonably relies on those models and addresses their constraints.
- When statutory terms are undefined, an agency may apply ordinary meaning and operationalize the term through a reasoned, record-based approach.
- Decisions about whether to recognize distinct population segments are reviewed deferentially when the agency considered relevant data and explained why the populations were not sufficiently discrete or significant for separate treatment.

## Conclusion

The D.C. Circuit held that FWS lawfully listed the polar bear as a threatened species because the agency reasonably explained—based on record evidence and available climate science—its 45-year “foreseeable future” horizon, its reliance on climate and sea-ice modeling despite acknowledged uncertainty, and its decision not to treat polar-bear populations as separate distinct population segments.


In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation, 709 F.3d 1 (2013)