## Facts

- In May 2008, the U.S. Fish and Wildlife Service (FWS) published a final rule listing the polar bear as a threatened species under the Endangered Species Act (ESA).
- At the same time, acting under ESA § 4(d), FWS issued a species-specific “special rule” governing what ESA protections would apply to the threatened polar bear.
- FWS stated the special rule was aimed at managing threats from activities such as oil and gas exploration and development affecting polar bears in Alaska, while coordinating ESA protections with existing federal regimes.
- The special rule generally applied ESA § 9 “take” prohibitions to polar bears, but included a key limitation: an exception for incidental takes resulting from activities occurring outside the polar bear’s current geographic range (the “incidental-take exception”).
- FWS relied on scientific material from the U.S. Geological Survey and the Environmental Protection Agency to explain that available climate-change modeling could not reliably connect particular greenhouse-gas emissions sources to specific sea-ice losses and then to particular incidental takes of polar bears in a way workable for ESA take enforcement.
- Environmental organizations challenged the special rule, arguing that the incidental-take exception unlawfully reduced default protections for a threatened species without showing a valid conservation-related reason for departing from ordinary ESA take coverage.
- The parties filed cross-motions for summary judgment on ESA/APA claims and on related claims that the agency violated the National Environmental Policy Act (NEPA) by issuing the final § 4(d) rule without an Environmental Assessment (EA) or Environmental Impact Statement (EIS), instead relying on a categorical exclusion.

## Issues

1. Whether FWS’s ESA § 4(d) special rule for the threatened polar bear—particularly the incidental-take exception for activities outside the species’ geographic range—exceeded the agency’s authority or was arbitrary and capricious under the ESA and the APA.
2. Whether the agency lawfully relied on scientific and administrative feasibility concerns (including limits on linking specific greenhouse-gas emissions to specific polar bear takes) as part of its § 4(d) regulatory choices.
3. Whether NEPA required FWS to prepare an EA or EIS for the final § 4(d) rule, rather than relying on a categorical exclusion.
4. If NEPA was violated, what remedy was appropriate for the final § 4(d) rule and whether an interim rule should remain in effect pending NEPA compliance.

## Decision

- The court upheld the substance of the § 4(d) final rule against the ESA/APA challenges, concluding that ESA § 4(d) grants the Secretary broad discretion to issue regulations the agency deems “necessary and advisable” for conservation of a threatened species, and that the rule (including the incidental-take exception) fell within that discretion.
- The court accepted FWS’s explanation that, given the diffuse nature of climate change and the limits of existing models, the agency could reasonably decline to use the § 4(d) rule to extend ESA take liability to incidental takes attributed to activities outside the polar bear’s range, including activities tied to greenhouse-gas emissions.
- On NEPA, the court held FWS acted unlawfully by issuing the final § 4(d) rule without preparing an EA or EIS and by relying on a categorical exclusion despite the rule’s significance and dispute.
- The court vacated the final § 4(d) rule on NEPA grounds, while leaving an interim rule in place to avoid a gap in regulatory protections during further NEPA review.

## Legal Principles

- ESA § 4(d) authorizes the Secretary to issue regulations for threatened species that the Secretary finds “necessary and advisable” for conservation, and it permits tailored rules rather than automatic application of all ESA § 9 prohibitions.
- Under APA arbitrary-and-capricious review, a court asks whether the agency gave a reasoned explanation tied to the record; it does not replace the agency’s judgment with its own where the agency’s choice is rational and within statutory bounds.
- In shaping a § 4(d) rule, the agency may consider how other federal regimes (including the Marine Mammal Protection Act and related permitting structures) already regulate key sources of harm and may avoid duplicative take regulation where the agency reasonably finds little added conservation value.
- An agency may account for causation and administrability limits when deciding how to regulate “take,” including whether a regulatory approach is workable when alleged harms flow through complex, multi-step global processes.
- NEPA generally requires an EA or EIS for major federal actions significantly affecting the human environment; a categorical exclusion is improper where the action’s context, effects, or dispute triggers the need for environmental review.
- When a rule is issued in violation of NEPA, vacatur is an available remedy, and a court may structure relief to prevent a lapse in protections while the agency completes NEPA-required analysis.

## Conclusion

In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation held that FWS acted within its broad ESA § 4(d) authority when it issued a special rule for the threatened polar bear that applied ESA take prohibitions but carved out an incidental-take exception for activities occurring outside the bear’s geographic range, including in light of limits on linking specific greenhouse-gas emissions to specific takes; however, the court vacated the final § 4(d) rule because FWS failed to complete NEPA review and could not rely on a categorical exclusion, leaving an interim rule in place pending compliance.


In re Polar Bear Endangered Species Act Listing and § 4(d) Rule Litigation, 818 F. Supp. 2d 214 (2011)