The lobstermen of Maine won a significant legal victory this past week when the D.C. Circuit Court ruled against actions taken by the federal government to protect the endangered right whale. In Maine Lobstermen’s Association (MLA) vs. the National Marine Fisheries Service (NMFS), the Court struck down a controversial biological opinion that applied a worst-case scenario to develop its regulations. The intent of a biological opinion is to analyze the effects of a proposed action to ESA-listed species and or designated critical habitat. The Court concluded that the Endangered Species Act (ESA) neither requires, nor supports, such worst-case presumption and opined:
”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 . . . [ESA] is focused upon “likely” outcomes, not worst-case scenarios. It requires the Service to use the best available scientific data, not the most pessimistic. The word “available” rings hollow if the Service may hold up an action agency by merely presuming that unavailable data, if only they could be produced, would weigh against the agency action.”
The Court went on to say, “The result may be great physical and human capital destroyed, and thousands of jobs lost, with all the degradation that attends such dislocations. . . Nor are humans the only casualties of worst-case thinking: A presumption in favor of one protected species may jeopardize another.”
The implications of the decision are far-reaching in how the government uses data to protect species.
Unfortunately, the Biden Administration’s announcement this past week to repeal the Trump Administration’s 4(d) rule, incentivizing more private landowner action to keep species off the endangered species list and weighing economic factors for listing species, runs contrary to this decision.
While ConservAmerica fully supports the ESA and its important goal, the government has enormous authority under the ESA that must be used wisely and not ignore the economic impacts of the federal government’s actions.