It's only an emergency listing if FWS says it is.
American Bird Conservancy v. Kempthorne, 2007 WL 2972548 (D.N.J., Oct. 11, 2007)(Just because a plaintiff characterizes a petition as an emergency petition does not make it so, and the ESA does not empower a private right to force an agency's exercise of emergency discretion).
In August 2005, the Plaintiffs petitioned the U.S. Fish & Wildlife Service to list a migratory shorebird in the Deleware Bay ecosystem, commonly known as the "red knot," as endangered on an emergency basis. In a responsive letter in December 2005, FWS denied the request, finding that an emergency situation did not exist. In September 2006, FWS included the red knot in a Candidate Notice of Review, published in the Federal Register, acknowledging "substantial decline" in red knot populations. Plaintiffs, the American Bird Conservancy, filed suit seeking an order to immediately reconsider the FWS statements. The Court dismissed the suit for lack of subject matter jurisdiction.
Photo of the red knot by Jeff Wells found on www.audubon2.org, click here.
First, the Court found that the ESA did not include any provision authorizing a suit regarding a decision not to emergency list a species. Rather, it found that Congress left the decision as to whether or not to exercise emergency rulemaking powers to the discretion of the Secretary of Interior. See, Institute for Wildlife Protection v. Norton, 303 F.Supp.2d 1175 (W.D. Wash. 2003)(analyzing ESA Section 4(b)(3)(c) and 4(b)(7).
Second, the Court also found that the Federal Administrative Procedure Act did not empower any judicial review. Citing Heckler v. Cheney, 470 U.S. 821 (1985), the District Court held that the ESA provided "no meaningful standard against which to judge the agency's exercise of discretion." While the ESA did provide standards for review of a traditional petition to list a species, Plaintiffs simply could not provide any "constitutional, statutory, or regulatory command" governing the exercise of discretion regarding whether to invoke the emergency rulemaking provisions of the ESA.
Bottom line: it's not an emergency unless FWS says it is.