In June the U.S. Court of Appeals for the D.C. Circuit ruled overwhelmingly in favor of the Maine Lobstermen’s Association (MLA) in its appeal of a 2022 lower court ruling in Maine Lobstermen’s Association v. National Marine Fisheries Service. The MLA’s appeal was brought to the court by Paul Clement, a renowned appellate lawyer and former solicitor general under President George W. Bush.
“This case is precedent setting for other applications of the Endangered Species Act (ESA) across the country,” he said in a recent interview. “It says that the agencies need to call balls and strikes fairly. They can’t take the easy way out.”
Paul Clement represented MLA in its successful case against government overreach. NPR photo.
The MLA argued that in making his decision, Washington, D.C. District Court Judge Boasberg simply deferred to the National Marine Fisheries Service (NMFS) on all counts without actually weighing the validity of the MLA’s argument, that NMFS cherry-picked available data and used unsupported assumptions and worst-case scenarios as the basis for its North Atlantic right whale conservation plan.
The Appeals Court agreed, stating “The court made only a cursory analysis of the text before declaring the question one of policy, not law.” The Court wrote, “Here, the Service announced at the outset that when it made assumptions about the known unknowns, it would 'generally select the value that would lead to conclusions of higher, rather than lower, risk to endangered or threatened species.' All of the assumptions the Service made are thus tainted by the presumption in favor of the species. Some of the assumptions the Service made along the way are quite important—as we have explained, the Service ultimately concluded the lobster and Jonah crab federal fisheries kill 46 whale deaths per decade, a staggering departure from the two documented deaths known to have originated in all U.S. fisheries over a period of nine years.”
The three-judge appeals court was unanimous in its ruling, Clement noted. “It’s a great feeling that it was not a divided panel, that they were emphatically in favor of the lobstermen. The way the opinion was written matters — it was not narrow or a begrudging opinion.”
In its ruling, the Court wrote: “In this case, we decide whether, in a biological opinion, the Service must, or even may, when faced with uncertainty, give the ‘benefit of the doubt’ to an endangered species by relying upon worst-case scenarios or pessimistic assumptions. We hold it may not. The ESA and the implementing regulations call for an empirical judgment about what is ‘likely.’ The Service’s role as an expert is undermined, not furthered, when it distorts that scientific judgment by indulging in worst-case scenarios and pessimistic assumptions to benefit a favored side.”
“The question is how much deference do you give these agencies. The panel made clear that the agency was wrong, erring on the side of the species at every turn,” Clement said. “Congress amended the ESA to make sure there was a balanced approach. The change allowed for a cost/benefit analysis and the ability to take into account other interests. The lower court and the agency replicated the error that Congress had corrected.”
“The presumption in favor of the species is, like an adequate margin of safety, a blunt tool,” wrote the Court. “The presumption significantly expands the Service’s veto power, prevents the agency from 'paying attention to the advantages and the disadvantages' of the action, and invites the unnecessary economic dislocation wrought by worst-case thinking… We may reasonably expect the Congress at least to speak, not to be silent, when it delegates this power to destroy.”
Government regulations not only affect large corporations and businesses but individuals as well, Clement noted. “People don’t fully appreciate how much regulation there is in fisheries. It was a delight to get involved in this case because it was a clear case of regulatory overreach. I could see in clear terms the human cost of over-regulation,” he said. “When issues get complicated, courts are tempted to defer to government agencies. This case showed what that meant in human terms.”
This fall Clement will be before the U.S. Supreme Court in the case of Loper Bright Enterprises, Inc., v. Raimondo. The suit challenges a NMFS rule that requires herring vessel owners to pay for on-board monitors to collect catch data related to conservation and management of the fishery.