DC Court Holds That ESA Section 7 Does Not Give The "Benefit Of The Doubt" To Listed Species

• Published date: 26 June 2023
• Subject Matter: Environment, Government, Public Sector, Environmental Law, Constitutional & Administrative Law
• Law Firm: Perkins Coie LLP
• Author: Ms Stacey Bosshardt, Edward Boling and Laura Smith Morton

The U.S. Court of Appeals for the District of Columbia Circuit issued an opinion on June 16, 2023, speaking to several important issues in administrative law. Confronting a challenge under the Endangered Species Act (ESA), the district court addressed how federal agencies must approach uncertainty under the Administrative Procedure Act's (APA) standards, the continued viability of the Chevron doctrine, and how (now-common) dramatic pendulum swings in an agency's interpretation of particular statutes diminish the extent to which reviewing courts will defer to federal agency determinations.

In Maine Lobstermen's Association v. State of Maine Dep't of Marine Resources, 2023 WL 4036598 (D.C. Cir. 2023), the court addressed "whether and to what extent the federal lobster fishery is responsible for hampering the [North Atlantic] right whale population." Id. at *2. The court held that the National Marine Fisheries Service (NMFS) erred by concluding that it must give the "benefit of the doubt" to an endangered or threatened species by relying upon worst-case scenarios or pessimistic assumptions when determining whether a federal fishery is "likely" to jeopardize that species under the ESA. The court held that not only is this approach not mandatory, it is inconsistent with the statute's requirement to base such determinations on the "best scientific and commercial data available."

NMFS' Biological Opinion and "Phase One" Rule

The controversy before the court concerned NMFS's Biological Opinion regarding the effects on the right whale and lobster and Jonah crab fisheries, and a related rule imposing certain requirements on lobstermen designed to reduce the risk of injury to North Atlantic right whales. Two groups of plaintiffs raised challenges to these actions: conservation groups and groups of lobstermen (including the lead plaintiff, Maine Lobstermen's Association) joined by Maine's Department of Marine Resources. The Biological Opinion addressed uncertainty regarding right whale deaths by making a series of extremely conservative assumptions. The combined effect of these assumptions, the agency concluded, is that the fishing gear used in lobster and Jonah crab fisheries would kill 46 whales each decade. Id. at *3. NMFS also concluded that federal fisheries entangle more than 9% of right whales each year, but based this conclusion on a study that provided the "benefit of the doubt" to the species, as opposed to actual "confirmed entanglements." Id. NMFS found...