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July 10, 2023  |  Written by Somach Simmons & Dunn

Federal Appeals Court Strikes Down National Marine Fisheries Service’s Claimed Duty to Give Species the “Benefit of the Doubt” in the Face of Factual Uncertainty; Calls into Question Deference to Agency Interpretation Under Endangered Species Act

In an opinion with the potential to significantly impact future challenges to agency action – including, notably, challenges to biological opinions prepared in accordance with the Endangered Species Act (ESA) – the United States Court of Appeals for the District of Columbia Circuit took aim at several key issues affecting agency decisionmaking, challenging an agency’s responsibilities when making decisions in the face of uncertainty and calling into question the degree of deference a court must afford an agency’s statutory interpretations.

The case, Me. Lobstermen’s Ass’n v. Nat’l Marine Fisheries Serv. (D.C.Cir. June 16, 2023, No. 22-5238) 2023 U.S. App. LEXIS 14987, centers on actions taken by the National Marine Fisheries Service (NMFS) aimed at protecting the North Atlantic right whale from human activities – namely, those of the lobster and crab fishing industry – which NMFS asserted were the cause of a sharp decline in the critically endangered whale’s population numbers.

After concluding that a spike in right whale deaths in 2017, which NMFS termed an “unusual mortality event,” was caused primarily by vessel strikes and fishing gear entanglements, NMFS, which licenses fisheries in federal waters, took action under the ESA and the Marine Mammal Protection Act (MMPA) to assess the causes of whale mortality and implement measures to alleviate it. To that end, NMFS prepared a biological opinion outlining the effects that fisheries have on whale populations and analyzing whether those effects are “likely” to jeopardize the survival of the species. Additionally, NMFS developed a Conservation Framework which it claimed would, over the course of four phases, reduce right whale deaths caused by federal fisheries to near zero by 2030. Phase one of the Framework involved the implementation of a rule (the “phase one rule”) consisting of a number of requirements – lobstermen must mark their ropes, add weak links or use weak ropes, and increase the number of traps used for each trawl – and restrictions, such as a ban on the use of fixed buoy lines during the fall and winter months. Full implementation of the Framework, NMFS asserted, would render the fisheries’ effects on whale populations insignificant.

Jeopardy of the Species not “Likely” or “Reasonably Certain”

The agency’s assessment of the industry’s effects on whales and its recommended plan of action were necessarily based on insufficient information. A dearth of reliable data regarding the magnitude and causes of whale mortality meant that NMFS’s biological opinion would involve a high degree of uncertainty and a lack of evidentiary support for the conclusions it contained. The agency, in the absence of such data, resorted to modeling projections that employed worst case scenarios and conservative risk estimates which skewed the data in favor of the whale. The resulting assumptions reflected a narrative in which federal lobster and crab fisheries allegedly kill an unsustainable number of whales every year and would decimate the species in less than 10 years.

Section 7 of the ESA directs a consulting agency, in preparing a biological opinion, to describe the “reasonably certain” effects of an agency’s action on a protected species and make a determination of whether an action is “likely to jeopardize” the continued existence of a protected species. Despite the statute’s requirement that this analysis be based on “the best scientific and commercial data available,” NMFS defended its use of worst-case scenarios and conservative assumptions that “very likely overestimate[d]” the risk to whales from fisheries, explaining that the legislative history of the law required NMFS to “give the benefit of the doubt to the species” in cases involving such uncertainties.

The Court of Appeals disagreed. The court found that the assumptions made by NMFS were unreasonably speculative and contrary to the agency’s own interpretive rules, which require that effects on a species be “reasonably certain to occur” and “based on clear and substantial information.” The ESA and its implementing regulations, the court reasoned, obligate an agency to make determinations based on empirical evidence. “Nothing in [section] 7,” the court held, “requires ‘distorting the decisionmaking process by overemphasizing highly speculative harms’ whenever the available data is wanting.” The court found that NMFS erred by resolving scientific uncertainty in favor of the species without any evidence that effects would be reasonably certain, and by presuming that the legislative history on which it relied could imbue the agency with duties not found in the statute itself.

Key Takeaways

The decision is significant for its potential to shape future challenges to biological opinions, as well as a challenge to any agency decision involving discretionary judgment in the face of uncertain factual data. Historically, courts have often treated agency determinations involving unavailable data or uncertain scientific evidence with a liberal degree of deference, limited only by the “highly deferential arbitrary and capricious standard of review for agency predictions ‘at the frontiers of science.’ ”

This opinion, however, suggests that such deference may be more limited as courts may approach agency decisions made in the context of uncertain or unavailable data with skepticism. Indeed, the court reiterated that an agency is entitled to deference only when it can “make a scientifically defensible decision without resort to a presumption in favor of the species.” In those cases where a high degree of uncertainty makes such a reasoned conclusion impossible, the court found a simple solution in NMFS’s interpretive rules: if an effect cannot be predicted with reasonable certainty based on clear and substantial evidence, it must be disregarded in evaluating the agency action.

In sum, the court held that an agency may not favor a particular outcome rooted in perceived statutory goals or environmental objectives by resorting to unreasonable speculation at the expense of scientifically defensible findings. It remains to be seen how far and wide the effects of the court’s opinion will be felt in future challenges to agency decisions involving the ESA.

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