Center for Biological Diversity v. Everson

The plaintiffs said it would be appropriate to continue to stay resolution of their outstanding claims challenging the final 4(d) rule for the northern long-eared bat until after the Fish and Wildlife Service published its final determination on the proposed rule to list the species as endangered.

The federal district court for the District of Columbia ruled that the U.S. Fish and Wildlife Service (FWS) acted arbitrarily and capriciously when it designated the northern long-eared bat as “threatened” rather than “endangered” under the Endangered Species Act. The primary threat to northern long-eared bat survival is white-nose syndrome (WNS), which the court noted has been “responsible for unprecedented mortality of insectivorous bats in eastern North America.” The court agreed with the plaintiffs that FWS had acted arbitrarily and capriciously by disregarding “the cumulative effects that factors other than WNS may have on the species when explaining the rationale for the threatened determination.” Although the court did not mention climate change in its opinion, FWS mentioned climate change in the listing rule—as the plaintiffs noted in their briefing—as one of the factors that could have cumulative effects on the bats in concert with WNS. Although the court rejected the plaintiffs’ argument that FWS’s interpretation of “in danger of extinction” as “on the brink of extinction in the wild” was “unlawfully stringent,” the court concluded that FWS had not provided the plaintiffs and the public with an opportunity to comment on the application of this interpretation to the northern long-eared bat. (FWS developed the interpretation in a 2011 “Polar Bear Memo” that addressed the determination of threatened status for polar bears.) The court also said FWS unlawfully applied its “significant portion of its range” policy to the bat.