On June 16, 2023, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the National Marine Fisheries Service (NMFS or Service), which licenses and regulates fisheries in federal waters, was not permitted to give the "benefit of the doubt" to endangered species or rely on worst-case scenarios or pessimistic assumptions in preparing biological opinions required by the Endangered Species Act (ESA). Maine Lobstermen's Association v. State of Maine Dep't of Marine Resources (D.C. Cir. June, 16, 2023) (slip opinion).
North Atlantic right whales are endangered species that live in the coastal waters of the eastern United States and Canada, but occasionally "wander" as far as Iceland and Norway. Id. at 4. A recent NMFS survey estimates the number of right whales to be at 368, owing in part to food availability due to warming Gulf waters. The food shortage has altered the whales' migratory patterns and shifted them toward Canada, where they are more likely to become entangled in commercial fishing gear used to harvest Canadian snow crab. Id. at 5-6.
In 2017, following the death of 17 right whales by vessel strikes and fishing gear, NMFS declared an "unusual mortality event" pursuant to the Marine Mammal Protection Act (MMPA). 16 U.S.C. § 1421c. Id. at 6. The declaration coincided with a new study that documented the right whale's sudden decline. In response, the NMFS reinitiated a formal consultation under Section 7 of the ESA for fisheries that may harm the right whale, including lobster fisheries. See 50 C.F.R. § 402.16(a)(1)-(2). Typically, consultations require the agency to prepare a "Biological Opinion" documenting the effects of the action. If NMFS finds that the action is likely to "jeopardize" a protected species then NMFS may propose "reasonable and prudent alternatives" – if any – to reduce the risk of extinction. It may then implement the alternatives, stop the action, or seek an exemption from the Endangered Species Committee. See 16 U.S.C. § 1536(e), (g). Id. at 7.
NMFS is required to use "the best scientific and commercial data available" in assessing the impact that an activity may be having on a protected species. Relying on the legislative history of the 1979 ESA amendments, NMFS determined that where data is limited and assumptions are required, it should give the "benefit of the doubt" to the endangered or threatened species. Id. at 7-8.
In analyzing the data on deadly entanglements, it was apparent that most deadly and non-deadly whale entanglements cannot be traced with confidence to a particular country or to a type of fishing gear. In making its assumptions about projected whale deaths, NMFS concluded that fishing gear used in the lobster and Jonah crab fisheries kills about 46 North Atlantic right whales each decade (a number that would "decimate" the population in less than 10 years). NMFS also determined that federal fisheries entangle more than 9% of right whales each year. Id. at 9.
NMFS recognized these assumptions may be "pessimistic" but explained it needed to give the "benefit of the doubt" to the species. The assessment was the basis for a final rule implementing and amending a "take reduction plan" for the right whale under the MMPA. This rule required lobsterman to make various modifications to their equipment and include seasonal fishing restrictions. Id. at 11. In addition to various conservation groups' lawsuit against the rule as not stringent enough, lobsterman industry groups brought a lawsuit against NMFS as the rule would cost them an estimated $50 to $90 million over the first six years. Conservation groups intervened as defendants. Id. at 13. The district court entered summary judgment for NMFS and while on remand, the conservation groups were successful in getting the court to order the NMFS to promulgate a new rule. Id. at 13-14.
After finding that the potential harm flowing from the biological opinion (the "pocketbook injury") was an appropriate basis on which to base the lobstermen's standing, in addition to finding organization standing (and interim proceedings on whether the case was moot due to intervening legislation), the D.C. Circuit found that nothing in Section 7 of the ESA requires the NMFS to "distort[] the decisionmaking process by overemphasizing highly speculative harms." Id. at 21. The D.C. Circuit harkened back to the infamous "snail darter" case in which the Supreme Court halted the construction on the Tellico Dam that had a price tag of $100 million (in 1978 dollars). TVA v. Hill, 437 U.S. 153, 172 (1978). In that case, the Supreme Court deemed the waste justified by "institutionalized caution" of the ESA, which had the practical effect of causing government or industry "to spend billions to save one more fish." See Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 233 (2009) (Breyer, J., concurring in part and dissenting in party).
The snail darter case prompted Congress to change "do not jeopardize" to "is not likely to jeopardize" with the mandate for an agency to rely upon "the best scientific evidence and commercial data available." Maine Lobstermen's Assoc. (Slip Op.) at 22. The legislative history showed that Congress did not want economic activity to come to a screeching halt where complete data was lacking.
The D.C. Circuit declined to adopt an "aggressive reading of Chevron that has more or less fallen into desuetude," id. at 23 (citing Buffington v. McDonough, 143 S. Ct. 14, 22 (2022) (Gorsuch, J., dissenting from denial of certiorari)), and rejected this take on Chevron that would give an agency "wide latitude." Id. The Court found that NMFS misconceived the law when it wrongly concluded that the ESA's legislative history compelled a precautionary principle in favor of the species.
In a harsh rebuke of the NMFS, the Court further stated:
"Indeed, the Service's legal reasoning was not just wrong; it was egregiously wrong. The Service's argument rested entirely upon a half-sentence in the legislative history. This 'approach is a relic from a bygone era of statutory construction. . . We cannot approve such a casual disregard of the rules of statutory interpretation. . . The reason is obvious; as any high school Civics student should know, legislators vote on and the president signs bills, not their legislative history. Legislative history therefore cannot bind the executive branch and compel a presumption in favor of the species not required by statute."
Id. at 25. (internal citations omitted; emphasis supplied).
The Court also ruled that NMFS change in position is arbitrary and capricious, finding that only a few years ago, NMFS agreed with commenters that nothing in the ESA required it to use a "worst case scenario" or make unduly conservative modeling assumptions. Id. at 26. Noting that agencies are free to change their existing policies provided they give reasoned explanation for the change, the Court nonetheless found that NMFS "displayed no awareness of its own flip flop" and deemed it arbitrary and capricious. But even if the agency had shown awareness of its new position, the D.C. Circuit said that it would still have to reject the argument because the statute is focused on "likely" outcomes, not worst case scenarios. Id. at 27.
The decision is significant, as it curtails a federal agency's ability to expand its "veto power" and "invites the unnecessary economic dislocation wrought by worst-case thinking." Id. at 28 (citing Michigan v. EPA, 576 U.S. 743, 753 (2015). Notably, the Court also considered the serious real-world effects that occur when agencies overreach in making their decisions – such as "great physical and human capital destroyed, and thousands of jobs lost, with all the degradation that attends such dislocations." Id. at 28-29.
The D.C. Circuit made abundantly clear, "it is not the province of a scientific consultant to pick whales over people" and admonished agencies against distorting the analysis, lest the public have no confidence that the "economic dislocation" necessary to protect a species is the result of "overly zealous agency officials."
This decision is a win for industries, businesses, and organizations whose activities are frequently at the mercy of federal agency actions and decisions, particularly those that are increasingly under attack by activists and advocates that push ideological goals and agendas at odds with their activities. It also serves as a warning to federal agencies that base decisions on policy judgments rather than "the best scientific and commercial data available" – the key being data – not environmental or scientific theories or assumptions that steeped in speculation and "worst case scenario" conclusions.
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