The Federal Judge in the polar bear cases challenging the ESA threatened listing has remanded the final listing rule to the USF&WS for the limited purpose of explaining its use of the descriptive term “imminent” in its definition that an endangered species is one in “imminent” danger of extinction as distinct from one “threatened,” which is not imminently at risk. The USF&WS used the term as if it appears in the ESA, but it appears nowhere in the law. The judge has ordered briefing on that point by everyone before oral arguments that have been rescheduled for February 23. Yours truly is one of the 15 of more than 50 lawyers selected to orally argue the briefs that day.
The issues to be orally argued span the “prematurity” of the listing, the legal meaning of “likely,” “foreseeable,” “threatened,” “endangered,” “distinct populations,” “taking into account foreign programs,” as well as the “uncertainty” of climate projections. The resolution of these issues will determine more than the value of resources in the North and the welfare of the bear. It may impact everything in our lives. Under the ESA, listed fauna comes first.
