Sierra Club prevailed in its legal challenge to the 2021-2026 Incidental Take Regulations issued by the U.S. Fish and Wildlife Service, which authorized harmful impacts to the Southern Beaufort Sea polar bears, a population in decline from the impacts of sea ice loss. Sierra Club’s Environmental Law Program argued that the Regulations unlawfully manipulated Marine Mammal Protection Act requirements, and the U.S. Court of Appeals for the 9th Circuit ruled in Sierra Club’s favor–a culmination of years of conservation litigation in Alaska spearheaded by ELP attorney Karimah Schoenhut.
The stringent protections of the Marine Mammal Protection Act only allow incidental take if evidence shows there will be no more than a "negligible impact" on the local population. For decades, the Service has issued these regulations without conducting any quantitative analysis of the lethal impacts to newborn polar bear cubs, instead assuming based on qualitative factors that no potentially lethal impacts would occur. In the absence of existing quantitative analysis, Sierra Club’s Environmental Law Program developed statistical models with expert assistance that demonstrated and quantified the lethal impacts of onshore seismic oil and gas surveys on denning newborn cubs.
Faced with this undeniable evidence, the Service was forced to change course and conducted its own quantitative modeling of these impacts for the first time. Their modeling showed similar results–a high probability of lethal impacts to cubs. The Service attempted to skirt around the Marine Mammal Protection Act’s highly protective requirements by segmenting their results in unlawful ways: (1) the Service subdivided categories of injurious harassment, which should have been considered as a whole and (2) the Service considered impacts over an isolated year by-year basis, failing to investigate the impacts over the whole 5 year period.
The Act specifically defines the forms of "take" that the Service must consider when evaluating whether it can authorize incidental take. “Level A harassment” is one of these categories that the Service must consider and includes any acts that have the potential to injure a marine mammal in the wild. Instead of evaluating the likelihood of Level A harassment, the Service unlawfully subdivided it into “serious” (likely lethal) and “non-serious” injury categories, only considering these probabilities in isolation and not actually evaluating the total likelihood of Level A harassment which was approximately 75% for each individual year of the five-year period of the authorization. The Court agreed with Sierra Club that the subdivision of Level A harassment was unlawful.
The Service also impermissibly segmented the results of its modeling by considering the likelihood of "serious" Level A harassment only in each individual year of the 5-year period of the take regulations in isolation, while failing to consider the likelihood of "serious" Level A harassment occurring at least once during the whole five year period. As a result, the Service unlawfully and irrationally concluded that no such "serious" Level A take would occur because the probability in each isolated year was 46%, refusing to consider that the likelihood of such take occurring at least once over the five-year period was over 94%, as demonstrated by Sierra Club. The Court agreed with Sierra Club that the Act's requirement to consider the "total taking" from the incidental take regulations required analysis of the likelihood of take over the whole 5-year period, not just each year in isolation.
The Court remanded the Regulations to the Service and required the agency to promptly re-evaluate its take determinations without any attempts to circumvent the Act. As a result of this ruling, the Service will have to explain how the death of polar bear cubs is no more than a "negligible impact" on the Southern Beaufort Sea polar bear population, which declined drastically due to sea ice loss, and has not recovered to reach its optimal sustainable population due to low cub survival rates. If the Service is unable to show a “negligible impact” on the population, it will have to reevaluate its Incidental Take Regulations.
Sierra Club was represented in this case by Environmental Law Program attorney Karimah Schoenhut.