Today, three environmental groups informed the Fish and Wildlife Service (FWS) of their intent to sue the agency regarding the listing of the polar bear as an endangered or threatened species.

The Center for Biological Diversity, Greenpeace and the Natural Resources Defense Council had petitioned the government in February 2005 to give polar bears protection under the Endangered Species Act (ESA). After not receiving a response, the petitioners sued in federal court in December 2005. Center for Biological Diversity v. Norton (N.D. Cal).

On July 5, 2006, the parties agreed to a negotiated settlement under which FWS would publish a finding by December 27, 2006. On January 9, 2007, after missing the initial deadline, FWS issued a proposed rule to extend “threatened” status to polar bears, which would mark the first time a mammal was found to be at risk because of global warming. FWS had one year from that date to make a final determination.

After an extended comment period, which resulted in a record +670,000 comments supporting the listing, the Director of FWS announced on January 7, 2008 that the upcoming deadline would not be met, leading to today’s action by the petitioners.

Under the ESA citizen suit provision, 16 U.S.C. § 1540(g)(2)(C), written notice must be given to the Secretary of the Interior at least 60 days before a suit can be filed in federal district court, although an “action may be brought immediately after such notification in the case of an action . . . respecting an emergency posing a significant risk to the well-being of any species of fish or wildlife or plants.” According to the petitioners’ letter, they believe this case poses just such an emergency.

For further information about this topic, please contact Akin Gump.