70 F.4th 582
D.C. Cir.2023Background:
- NMFS (the Service) prepared a biological opinion (BiOp) assessing effects of federal American lobster and Jonah crab fisheries on the endangered North Atlantic right whale and concluded federal fisheries kill an unsustainable number of whales based on uncertain data and a 2019 "scarring" analysis.
- The Service announced it would resolve uncertainty by giving the "benefit of the doubt" to the species, adopting pessimistic/worst-case assumptions and a Conservation Framework projecting phased reductions in entanglement risk to 2030; it then issued a Phase One rule imposing gear and seasonal restrictions on lobstermen.
- Lobstermen (Maine Lobstermen’s Ass'n and others) sued, challenging the BiOp and arguing it unlawfully relied on a species-favoring presumption; conservation groups separately litigated and prevailed on other grounds.
- Congress enacted the Consolidated Appropriations Act, §101(a), deeming the Phase One rule "sufficient" to ensure compliance with the ESA and MMPA through Dec. 31, 2028, and requiring new rules by 2028; the Service argued this and planned new consultation mooted the appeal.
- The D.C. Circuit held lobstermen had standing, the appeals were not moot, and that the BiOp unlawfully applied a substantive presumption favoring the species; the court vacated the BiOp as applied to lobster and Jonah crab fisheries and remanded the Phase One rule without vacatur.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ESA §7 requires or allows giving a "benefit of the doubt" (worst-case presumption) to species when data are uncertain | The Service must not adopt a substantive presumption; ESA focuses on what is "likely" and requires empirical judgments using best available data | Legislative history and agency practice permit (or require) resolving uncertainty in favor of the species; agency discretion to use conservative assumptions | The ESA does not compel or permit a substantive worst-case presumption; "likely" means "more likely than not," and the Service exceeded its authority by adopting a species-favoring presumption |
| Whether the BiOp’s reliance on pessimistic assumptions and a changed agency position was arbitrary and capricious | BiOp’s assumptions are unsupported and stem from an unlawful presumption; change from prior agency guidance lacked reasoned explanation | Agency has discretion at scientific frontiers and its modeling choices merit deference | The BiOp was arbitrary and capricious and contrary to law: the Service misread legislative history, reversed prior positions without reasoned explanation, and tainted key assumptions |
| Standing and mootness: Do lobstermen have Article III standing and are the appeals moot after the Appropriations Act and agency statements about new consultation? | Lobstermen suffer concrete economic injury from the Phase One rule and BiOp’s coercive effect; appeals remain live despite intervening law | Consolidated Appropriations Act deems the rule sufficient and Service's planned new consultation moots the disputes | Lobstermen have standing; the Appropriations Act and planned future consultation do not render the appeals moot because the BiOp and rule still have operative, coercive effects |
| Remedy: Vacate or remand BiOp and Phase One rule? | Vacate BiOp and rule as infected by unlawful assumptions | Remand for reconsideration; avoid vacatur of the rule to prevent regulatory/liability gaps | Vacate the BiOp as applied to lobster and Jonah crab fisheries; remand the Phase One rule without vacatur (leave rule in effect) |
Key Cases Cited
- Massachusetts v. EPA, 549 U.S. 497 (2007) (agency must form a scientific judgment when addressing environmental harms)
- TVA v. Hill, 437 U.S. 153 (1978) (illustrates the ESA’s pre-1979 absolute "no jeopardy" rule and its consequences)
- Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009) (discusses the consequences of overbroad precautionary agency action)
- Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) (NEPA does not require worst-case analysis)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing principles for parties directly regulated)
- Bennett v. Spear, 520 U.S. 154 (1997) (biological opinions have a coercive effect relevant to traceability for standing)
- Michigan v. EPA, 576 U.S. 743 (2015) (criticizes agency decisionmaking that ignores costs and applies blunt precautionary tools)
- Encino Motorcars, LLC v. Navarro, 579 U.S. 211 (2016) (agency must explain changes in interpretive positions)
- SEC v. Chenery Corp., 318 U.S. 80 (1943) (agency action cannot stand if based on a misconceived legal premise)
- SEC v. Chenery Corp., 332 U.S. 194 (1947) (courts may only uphold agency action on reasons the agency invoked)