Whales And Lobsters, Continued

Last week a federal appeals court in Washington, D.C. issued a decision that has been cause for celebration for the Maine lobster industry. What it ultimately means for the North Atlantic right whale, an endangered species, remains to be seen.

I’ve written before about the regulations imposing significant restrictions on the lobster fishing industry that were promulgated by federal agencies to try to protect the right whales, and the resulting concern in coastal Maine that the regulations will make lobster fishing so expensive and difficult that it could mean the end of the lobstering trade–which would be devastating for many communities. The story is a messy one that encompasses agency rulemaking, forecasting the fate of a species, fundamental disagreements about facts and data, and of course politics.

In last week’s federal appellate court ruling, the core question for the court was whether the National Marine Fisheries Service, which licenses fisheries in federal waters, acted properly in preparing a so-called “biological opinion” under the Endangered Species Act (“ESA”). The court’s ultimate decision was summarized in the second paragraph of the opinion:

“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 court found that the ESA contemplated a “scientific judgment” and did not require “‘distorting the decisionmaking process by overemphasizing highly speculative harms’ whenever the available data is wanting.” The court noted that “[b]y the Service’s admission, it relied upon worst-case modeling that is “very likely” wrong, based upon assumptions the Service concededly does not believe are accurate.” The court also observed:

“A presumption also ignores that worst-case scenarios lie on all sides. It is not hard to indulge in one here: ropeless fishing technologies, weak links, inserts, and trawls may not work; permanent fishery closures may be the only solution. The result may be great physical and human capital destroyed, and thousands of jobs lost, with all the degradation that attends such dislocations.”

The upshot is that the National Marine Fisheries Service will have to go back to the drawing board and develop a new “biological opinion”–one untainted by pessimistic assumptions and worst-case scenarios. The Service will also, as part of that process, consider whether the court ruling will affect related regulations. In the meantime, the Maine lobster fishing industry will avoid the worst-case scenario it was facing–at least, for now.