A Discussion on NMFS’s Regulatory Authority: Whales, Speed Limits, and Legal Questions

[Music and Narration]

 

Introduction:  Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.

 

Sarah Bengtsson:  Good afternoon, and welcome to this Regulatory Transparency Project webinar. My name is Sarah Bengtsson, and I’m Associate Director of RTP at The Federalist Society.

Today, July 17, 2023, we are pleased to host “A Discussion on the National Marine Fisheries Service’s Regulatory Authority: Whales, Speed Limits, and Legal Questions.” After the discussion, our panel will take audience questions, so please submit those into the Q&A function at the bottom of your Zoom window. Please note that, as always, all expressions of opinion on today’s program are those of the speakers. 

 

Today we are joined by two fantastic speakers, who I will briefly introduce before we move to the discussion. 

 

Jane Luxton is the Managing Partner of Lewis Brisbois’ D.C. office and one of the attorneys on the briefs for Maine Lobstermen’s Association. Jane is also a former General Counsel of NOAA. 

 

Braden Boucek is the Director of Litigation at the Southeastern Legal Foundation, and he recently filed comments in opposition to the proposal to impose a speed limit in the Florida Gulf.

 

In the interest of time, I’ll stop there, but you can read the full and impressive bios for our speakers at regproject.org.

 

Thank you all so much for joining. And now I will hand it over to you, Braden. 

 

Braden Boucek:  Thanks, Sarah. Much appreciated.

 

Today, as you briefly mentioned, we’re here to talk about the intersection of whales and agency law as well as the U.S. Constitution. At first blush, it might seem like this is not a natural pairing; however, it is a topic that is seemingly coming up with increasing regularity. In particular, a particular subagency by the name of National Marine Fisheries Service, or NMFS, or NOAA Fisheries, has been responsible for generating a significant number of regulations that impose what some would say to be severe restrictions in the name of protecting whales and other marine species. 

 

I’m pleased to be joined with Jane Luxton, who knows a heck of a lot more about this than I do. 

 

Jane, I want to thank you in advance for making sure that I navigate through these froth waters without stranding myself on any treacherous shoal. 

 

Jane Luxton:  Oh, no. Please. No. Stop. 

 

Braden Boucek:  Yeah. The topic just lends itself to fun, Jane. 

 

Jane Luxton:  Yes.

 

Braden Boucek:  I mean, one can’t help but invoke overwrought nautical metaphors.

 

But I want to thank you for being here. Why don’t we start by — let me just ask you a really basic question. What is NMFS, and why do they have anything to do with whales?

 

Jane Luxton:  Okay. First off, NMFS is one of its names. It’s also known as NOAA Fisheries, which was the preferred verbiage during the time when I was General Counsel to make it clear that NMFS was part of NOAA. But it has two distinct roles when it comes to endangered or threatened species like right whales. 

 

First, it regulates fisheries. And so, it has the direct regulatory role in making sure that fisheries are sustainable and operate in an economically feasible and sustainable way. 

 

Second, under the Endangered Species Act, when an agency wants to take an action called the Action Agency if there is likely to be an impact on a threatened or endangered species, that agency must consult with NOAA and another part of NOAA Fisheries, the Protected Species part and — or Protected Resources, and then it’s called the Consulting Agency. 

 

In the most recent case, the one we are going to be talking about a great deal today, NOAA, actually, was both of those: both an action agency—the fishing regulatory part of NMFS—and the service agency, meaning the protected species part of it. So kind of unusual within the single agency, but it happens a fair amount when it comes to fishery issues.

 

Braden Boucek:  So we’ll get — well, let’s just plunge right in and start talking about the Lobstermen’s case that you just delivered a smashing victory on in the D.C. Circuit Court of Appeals. Congratulations, by the way.

 

Jane Luxton:  Thank you. I had plenty of co-counsel who were far more responsible. I’m speaking of lead counsel; Paul Clement did a fabulous job on this.

 

Braden Boucek:  Well, I don’t doubt it. We all stand on the shoulders of the geniuses of our colleagues. Paul Clement I’ve heard of. I’ve heard that he’s a good lawyer. I don’t know much about him. Can you tell us more?

 

Jane Luxton:  Yeah. Yeah. He’s been around a bit. I think he’s up to 100 Supreme Court arguments now. 

 

Braden Boucek:  That’s far more than I have —

 

Jane Luxton:  Yeah. Me too. 

 

Braden Boucek:  — by a factor of 100.

 

Jane Luxton:  Yeah. 

 

Braden Boucek:  Well, okay. So let’s talk a little bit about the rule in question here. And what was the rule in question? And how did it affect the lobstermen? Of course, the lobster fishing industry is itself a storied American institution of sort, particularly when it comes to Maine lobster. Tell us what the rule was, what it was designed to do, and how we landed up in court.

 

Jane Luxton:  Again, somewhat unusual posture because we’re really talking about two distinct things: a biological opinion and an actual rule. The biological opinion was under the Endangered Species Act. The rule is under the Marine Mammal Protection Act. And they’re closely intertwined in this case.

 

The rule that you now have specifically asked about depended entirely on the biological opinion. And so — and there’s the Supreme Court case Bennett v. Spear, that holds a biological opinion is final agency action. So both parts of this regulatory effort were challengeable in court and, in fact, were. That became important later, whether the rule had actually been part of the complaint, and the D.C. Circuit panel ruled that it was. 

 

So what happened here is that NMFS published a biological opinion that essentially held the lobster fishery responsible by using modeling and certain pessimistic assumptions and giving the benefit of the doubt to the endangered species. Through doing all of those things, it held the Maine Lobster Fishery responsible for a very large number of right whale deaths, far in exceedance of anything that had been empirically shown. The reason for that was a few facts that have changed, and the D.C. Circuit opinion lays this out very well. 

 

Because of warming trends in the ocean, where both lobsters and right whales are at a particular time of the year, much of the prey for the right whales has moved north into Canadian waters. However, there’s not a lot of data available about how much the fishing or vessel strikes in Canadian waters have taken a toll on right whales. Also, not all whales are tagged, and so it’s not possible to ascertain the exact cause of death in the case of right whale deaths or serious injury from the impacts of one or another of these things: fishing and vessel strikes.

 

So the biological opinion, relying, as I said, on pessimistic assumptions benefitted the doubt to the endangered species, came up with a very heavy assignment of deaths and near-fatal interactions assigned to the Maine Lobster Fishery. And on that basis, went on to prescribe—and it would be implemented through the rule—some very draconian restrictions on the operation of the Maine Lobster Fishery. They included a very large area of the ocean that would be shut down during the winter fishing season, which is one of the prime fishing seasons for lobster, and also use of certain gear modifications. And these are costly for lobstermen to implement. 

 

And the Maine Lobstermen’s Association, which I was privileged to represent, made the point that it had made a series of modifications over the course of a number of years. Those changes, or other regulatory measures, had actually resulted in an uptick in the right whale population. But more recently, those numbers had gone down. The real argument was, “What was the cause of that reduction in the population? Was it Maine Lobstermen, or was it something else? And what about all those right whales that are now up in Canadian waters and were not really being able to be measured?”

 

Braden Boucek:  So what did the rule require of lobster fishermen? What was different?

 

Jane Luxton:  Well, as I said, the measures were this closure, which was pretty significant, and some gear modifications. What really was the key in the case, though, is, “What was the legal standard that NMFS followed in both the BiOp and then as it was implemented in the rule as well?” And so, that standard is that NMFS must use “the best available scientific and commercial data”—direct quote—and using that as a basis, determine whether the action—meaning the fishery — allowing the fishery to operate at all—is “not likely to jeopardize the survival of a” protected species. 

 

So the case really focused heavily on what the word “likely” means and whether NMFS was allowed to—allowed or required, as it said it was—to give the benefit of the doubt to the endangered species by relying on worst-case scenarios or pessimistic assumptions. NMFS said it was. Maine Lobstermen’s Association challenged that, and the D.C. Circuit agreed with the Maine Lobstermen’s Association. 

 

Braden Boucek:  Okay. We’ll talk about the holding here in a second. But before we do, how was this going to affect the lobster fishing industry, especially in Maine?

 

Jane Luxton:  Drastically. In 2020, the lobster fishery was responsible for $400 million in lobster catch. And the thing that is very unusual about the lobster fishery in Maine is it’s not factory ships operating there. It’s 4800 independently owned lobster fishing boats, many of them single; just the captain on the boat or a captain and an assistant, another fisherman. 

 

So it was going to affect 10 — more than 10,000 jobs if these drastic measures forced the shutdown of parts of the fishery or even more drastic impacts by making lobster fishermen believe they could no longer afford to operate those boats given the stringent new requirements that were going into place.

 

Braden Boucek:  Okay. Let me try and restate what you said, and you can tell me whether or not I’ve strayed off the mark here. 

 

It sounds like the benefits delivered by the rule are highly speculative and minuscule in terms of what they can actually quantify. But the burdens of the rule are dramatic, especially on the lobster fishermen; is that fair?

 

Jane Luxton:  That’s how the Maine Lobstermen’s Association saw it, and so did the D.C. Circuit.

 

Braden Boucek:  Did the government, in defending the rule, claim that they were able to actually show dramatic benefits from the rule?

 

Jane Luxton:  No. It was all based on modeling. And they admitted worse-case assumptions and so forth, benefit of the doubt to the species.

 

Braden Boucek:  So, essentially, they went into court claiming that the regulatory authority could proceed under modeling, speculation, and worst-case scenario assumptions; is that right?

 

Jane Luxton:  That’s right. 

 

Braden Boucek:  And what happened at the district court level?

 

Jane Luxton:  The district court sided with the government, with NMFS on this. And there are a series of cases. In one, the Center for Biological Diversity and other environmental groups had challenged the biological opinion for not going far enough because even the measures that I mentioned they felt were not stringent enough to protect the survival of the right whale population. So that case was proceeding. And then, in the course of events, the MLA case was filed as well, in September 2021.

 

Braden Boucek:  And MLA, that’s the Maine Lobstermen’s Association?

 

Jane Luxton:  Correct.

 

Braden Boucek:  So it sounds like this came up through two distinct legal action. Essentially, the rule got attacked from both directions. There was — 

 

Jane Luxton:  Typical in environmental cases, isn’t it? 

 

Braden Boucek:  Yeah. 

 

Jane Luxton:  Yes. That’s right. And in the case of the Maine Lobstermen’s Association case, the reason it got to the Court of Appeals sooner was that we collectively, as a legal team, moved for expedited consideration, pointing out the drastic effects of this closure that would go into effect in the winter months. And the court was willing to take it on an expedited basis.

 

Braden Boucek:  No, that’s great, important to move quick when you got dates like this.

 

But, before we get to the appellate opinion, I want to ask you a question. Why were groups like—what is it? The Center for Wildlife—is that what you said it was?

 

Jane Luxton:  I think National Wildlife Federation was a part of the coalition. The case name ended up under Center for Biological Diversity.

 

Braden Boucek:  Center for Biological Diversity. How did they have the ability to sue on the grounds that a rule is not protective enough?

 

Jane Luxton:  They argued the impact on the endangered species and were able to demonstrate standing.

 

Braden Boucek:  So for those of us who litigate against the government, I want to kind of drill in on this a little bit because this is a little bit of an unusual feature to the Endangered Species Act and the Marine Mammal Protection Act that we’re not accustomed to seeing in other realms. That is that you can have groups who have a purported interest who are able, under the scope of those statutes, to bring challenges under the ATA claiming that a proposed rule does not achieve the goals of, in this case, the Endangered Species Act and the Marine Mammal Protection Act because it is not protective enough. 

 

Jane Luxton:  Yes.

 

Braden Boucek:  And that’s something that I think would strike a lot of litigators as unusual who are accustomed to pretty rigid standing requirements. But the courts have said that you do have standing to bring these claims if an agency is not being protective enough towards meeting the goals of the Endangered Species Act or the Marine Mammal Protection Act.

 

Jane Luxton:  Yep. That’s true.

 

Braden Boucek:  So we find ourselves in court on two actions, NMFS’s dissent on all sides by a discreet interest, coming at very distinct perspectives.

 

So tell us what happens once you get to the D.C. Circuit Court of Appeals. What does it say about the biological opinion, or the BiOp? And what does it say about the rule?

 

Jane Luxton:  So there’s a lot of quotable language in the D.C. Circuit opinion on those subjects. And — 

 

Braden Boucek:  Do any of them involve whale ponds?

 

Jane Luxton:  No.

 

Braden Boucek:  No.

 

Jane Luxton:  And, in contrast to most of the district court’s opinions in this case, I give high points to Judge Ginsburg, who authored the D.C. Circuit opinion, for not giving into that impulse and just keeping this as it should be, a legal analysis. So, anyway, I personally appreciated that, having had to suffer through reading a number of these opinions that did not follow that — take the high road on that.

 

But, yeah, the court really honed in these — the questions and framed the issue as, “May or must the Service”—meaning NMFS acting as the service agency, the scientific expert — “Must or may it give the benefit of the doubt by relying on worst-case scenarios and pessimistic assumptions to the endangered species?” And they, in five words, said, “We hold it may not.” So they really could not have been clearer. 

 

They went on to say that the Service — “Service’s role as a [scientific] expert is undermined…by indulging in worst-case scenarios and pessimistic assumptions to benefit a favored side.” So they really broadened their conclusion on this.

 

And they then said that the Service’s task is to describe “reasonably certain”—and that’s a quote from the statute—effects. But when the Service said it resolves uncertainty in favor of the species picks higher rather than lower risk values, it gives the benefit of the doubt to the species. And beyond that, the court said the Service put aside data—and you remember the standard here is using the best available scientific and commercial data. So the Court said the Service put aside data—and here, we’re talking about empirical data about how many fatalities were actually traceable using empirical evidence to the lobster fishery—put aside data to give the benefit of the doubt to the species.

 

And, worse than that, they pointed out that NMFS acknowledged that its “model outputs very likely overestimate[d] the likelihood of a declining population.”

 

So this is a fairly unusual case where NMFS was so transparent about exactly what it was doing that it lent itself to a clear-cut legal analysis and decision. We don’t see this a lot in environmental disputes because often it’s a little hazier. The environmental regulatory agency doesn’t put it as starkly as that, but here it did. And so, it gave the D.C. Circuit an opportunity to make a clear decision about this. There were other parts of this. I don’t know how much you want to get into the detail of what NMFS said justified it, made it feel that it must give that deference. 

 

And then there’s another interesting discussion in the court case—and you’ll probably want to get to this later—about how Chevron figured into this whole analysis. 

 

Braden Boucek:  Yeah. I want to talk about both of them. We’ve already got a question about Chevron, but I — 

 

Jane Luxton:  Right. 

 

Braden Boucek:  — think we got plenty of time to get to all of this stuff. 

So, before we do, though, this whole idea that the agency can indulge in worst-case scenario thinking — both the Endangered Species Act and the Marine Mammal Protection Act would seem to, I think, most people to represent congressional enactments that are designed to ensure the survival of hideously endangered and threatened species. So why did the court find that NMFS wasn’t entitled to engage in these worst-case scenario assumptions in the name of protecting the survival of the species?

 

Jane Luxton:  Well, it went to the statutory language and went through the analysis that I’ve mentioned. 

 

NMFS fell into a big trap, I think, because it said that it was required to do this based on language in a congressional report from the 1979 amendments of the Endangered Species Act. And you may remember some of this history. But, originally, the Endangered Species Act had very stringent language, and it led to the TVA v. Hill case, the famous snail darter case, where Congress eventually recognized — first, the Supreme Court recognized, and then Congress dealt with the result that, essentially, there was no way out. If there was an Endangered Species Act involved, then a whole dam could not be constructed. And so, Congress felt that had gone too far and instead adopted language in 1979 that softened that standard and adopted this language “likely to jeopardize.” And that’s why this case now turned on that “likely” standard and that wording rather than the other. 

 

The reason I say the court fell into a trap is here they are citing legislative history, and it’s a congressional report. And the court just — the D.C. Circuit just went after that. And I have a quote here somewhere in my notes because it’s worth — okay. Here it is: “Here the Service”—this is from page 25 of the opinion—”misconceived the law, wrongly claiming the legislative history of the Endangered Species Act had ordained—as if legislative history could ever ordain—a precautionary principle in favor of the species.”

 

So we know this kind of reasoning from Justice Scalia. And these are people writing this opinion who very strongly agree with that principle. So that was, I think, one of the difficulties. 

Also, I would say, and the court didn’t get into this, that they misread that language because really what it was saying was that the amendments, which made the standard less strict, did fulfill the original intent to protect the endangered species. So, however, NMFS was essentially arguing that it could go back to the old, very strict standard and that it was required to and use all these pessimistic assumptions and so forth, giving the benefit of the doubt to the species to fulfill the requirements of the amended statute, which I think is just plainly wrong. 

 

Braden Boucek:  Yes. And the Court has touched on similar issues in a variety of environmental laws before. I’m thinking specifically of Michigan v. EPA — 

 

Jane Luxton:  Yep. 

 

Braden Boucek:  — where it — the Court said that agencies are required to engage in some kind of cost-benefit analysis. They cannot just sweep aside burdens that they’re placing in the name of achieving some regulatory goal. 

 

But I think in a — from a larger sense—tell me if I’m overstating this—this is another instance of textualism writ large. That is, you have the Court saying that the text of what Congress wrote matters more than delving through the legislative history and trying to tease out some principle the Court should attach primacy to versus what the actual text says. 

 

And here I’m actually looking at — it’s page 12 on my opinion.  But “The Service’s argument rested entirely upon a half-sentence of legislative history. This ‘approach is a relic from a bygone era of statutory [interpretation].'” But no more is the Court going to ignore the plain text in favor of a read that favors the agency based on legislative history; is that right?

 

Jane Luxton:  Oh, yeah. Yeah. This is definitely — you’re seeing the same thing I’m seeing that this is a larger conclusion, again, in-line with that principle. 

 

Braden Boucek:  Yeah. And continuing with it, the Court was not actually saying that Congress could not adopt some go all in for the species irregardless of caught rule. They were just saying that Congress hadn’t done it. And, in fact, towards the end of the opinion, when they’re talking about the Service’s position being arbitrary and capricious, they say that when Congress wants a precautionary principle, it says so. And then it cites examples of that actually happening, which is not evident in the Marine Mammal Protection Act or the ESA.

 

Jane Luxton:  Yes. And I think that’s an important point you just touched on. The Court cited two examples of the Clean Air Act and case law interpreting it. So it kind of opens the door to, “Okay. What else doesn’t specifically say that Congress intended the precautionary principle to apply?” 

 

So I think this case already people are looking at it for its broader implications to see — because that principle, and even going beyond that, I don’t know if you want to cover yet, but the Court specifically tackled this sort of silent Chevron doctrine that has crept into a lot of environmental law decisions and pretty strongly turned that down too.

 

Braden Boucek:  Yeah. Statutory silence getting Chevron deference is definitely a sub-issue here. 

 

Jane Luxton:  Correct. Right. 

 

Braden Boucek:  We’ll get to that in just a second.

 

Jane Luxton:  Yep. 

 

Braden Boucek:  But it seems to me that the finding that the agency is not entitled to rely on worst-case scenario assumptions is going to have much broader ramifications, particularly in environmental law. Can you talk a little bit about that? And would that apply outside the Endangered Species Act and Marine Mammal Protection Act to any sort of agency action?

 

Jane Luxton:  Well, okay. I guess I would say two things about this. 

 

This case is really significant. And that conclusion, in particular, when it comes to Endangered Species Act cases and interpretations, I think the Court has left little doubt now that this assumption based on the half-sentence in the congressional report is not going to fly, at least not in the D.C. Circuit. And we don’t know yet whether the government or environmental groups will seek en banc review. I think everyone agrees it would be a waste of their time to seek reconsideration. And we’ll probably have a little bit of a back-and-forth on what we think might happen if that happens. 

 

But, anyway, at least as far as the current D.C. Circuit law for the Endangered Species Act, I think that kind of analysis is going to be very hard to argue. The broader implications, I think, really go to the point you mentioned before: that by honing in on only where it’s specifically cited in a statute, can we assume that Congress meant for the agency to have the latitude to use pessimistic assumptions and precautionary principles. That’s the broader implication of this. Now, you could argue that’s dicta, but it’s also a pretty clear signal of how, at least this panel in the D.C. Circuit, is going to interpret that kind of analysis from the environmental agencies, NMFS, and others.

 

Braden Boucek:  Even if it is dicta, though, it is grounded in a textualist formulation —

 

Jane Luxton:  Correct. 

 

Braden Boucek:  — that precautionary principles make them into statute. And if they’re not in statute, the courts aren’t going to accept an agency’s argument that the Court should just allow it to adopt one anyway. 

 

Jane Luxton:  Right. And, taking this the next step, the three judges here—Ginsburg, Rao, and Katsas—are among the philosophical partners of the current majority on the Supreme Court. So that, I think, is, again, the larger implication of this line of reasoning from the Court.

 

Braden Boucek:  Well, so let’s talk a little bit about Chevron deference. We’ve both kind of danced around it a little bit. Surely, NMFS invoked Chevron in this case as the defense of the rule. Why don’t you tell us a little bit about how the court grappled with Chevron?

 

Jane Luxton:  Yes. Well, the court kind of called out the district court on this because this—again, you mentioned it earlier—it’s the silent Chevron kind of line of argument. And from page 23 of the opinion, the court says, “Without mentioning the case, the agency is, in substance, asking us to adopt an ‘aggressive reading of Chevron [that] has more or less fallen into desuetude.'” And they’re quoting Justice Gorsuch—no accident, I’m sure—who was dissenting from a denial of cert in Buffington v. McDonough in 2022. 

 

And then they immediately go on to say, “Under this version of Chevron, ‘silence’ gives an agency-wide latitude.” And then they cite Loper Bright Enterprises, Inc. v. Raimondo, another NMFS case, in which cert was granted a month earlier than the current decision we’re talking about and will be argued next fall. Also, to be argued by Paul Clement, and it’s another fascinating NMFS case where they’re relying many of the same principles.

 

Before we go to that, I can see you got a follow-up question. I just want to finish this last part of the quote. The court said, “The district court bought [this] gambit, even as it purported to avoid a ‘deference debate.'” And then, “In effect, the district court deferred to the Service’s interpretation under Chevron, without saying so.” And I do remember that very vividly from the district court opinion because it was so frustrating. The court just went along with this and claimed it was not doing a Chevron analysis, but there it was.

 

Braden Boucek:  Yeah. Yeah. I’ve seen this in a couple of similar cases where Chevron is out there, but it doesn’t have a name. There was a recent case brought by New Civil Liberties Alliance in the Fifth Circuit Court of Appeals that dealt with another NMFS regulation having to do with fraud under the —

 

Jane Luxton:  They’re everywhere. 

 

Braden Boucek:  Yeah. And this one was allowing — or was requiring charter fishermen to carry GPS data that they would then provide to NOAA so as to monitor their goings about. And the Fifth Circuit rejected the idea that they would get deference under Chevron, but it has lengthy discussion in there about Chevron status and whether or not it should even be named, and just that until the Supreme Court does something about it, we’re not going to — it’s not Voldemort. We’re not going to be afraid for name it. 

 

Jane Luxton:  Right. Cannot name it.

 

Braden Boucek:  We’re going to give it a — we’re going to give it a name, and we’re going to go forward with it. And, of course, the future Chevron is before the Supreme Court right now in the Loper Bright case, which we’ll talk about next. 

 

Jane Luxton:  Yeah. 

 

Braden Boucek:  But why did the court — so the D.C. Circuit Court of Appeals squarely discussed the Chevron, though, and ultimately dismissed that Chevron would be applicable here. Why?

 

Jane Luxton:  Yeah. They cited four rules — four reasons. They said the Service never said it was favoring whales over lobstermen for reasons of “policy,” not law. The NMFS whole justification for this was that half-sentence in the congressional report from which they said they were required to do this, and they followed it as a principle. And in the NMFS handbook, NMFS had expressly said it was required to do this. 

 

The second reason was, because at least as a policy matter, perhaps they would have had an argument, but not as a matter of law under the strict statutory interpretation that we just discussed. 

 

Second, the agency had — it had flip-flopped in its opinion throughout its regulations on whether to allow this, and, therefore, it was arbitrary and capricious, and no deference was allowed. And, as you said, that was in the arbitrary and capricious part of the opinion. 

 

And the third: the statute says “likely,” not worse case; therefore, it’s contrary to law, really, coming back to the same overriding principle. 

 

And then, fourth, they said, and the error was not harmless.

 

Braden Boucek:  Yeah. And when they say the agency had oscillated between one view and another, what were the views that it was oscillating between?

 

Jane Luxton:  Well, between the — it had originally, in its guidance documents, said one thing, then in the handbook said another. And in the rule, it was following this handbook version of things, which was that they were required by the 1979 statute. And they, of course, have sentence in the congressional legislative history. So that was the oscillation.

 

Braden Boucek:  Well, this was fantastic—the great look at the lobster case. Congratulations on your win. 

 

Let’s turn the page and talk a little bit about the future of Chevron, in particular, the pending Supreme Court case of Loper Bright v. Raimondo. We’d filed an amicus brief in that case on our organization. But that case went up. It was considering a challenge to a regulation enacted by NMFS that applied to herring fishermen, correct?

 

Jane Luxton:  Yes.

 

Braden Boucek:  And it was going to require, if I’m not mistaken, that they carry a federal monitor onboard and then pay to have the monitor onboard. And I believe the history itself showed that that was because NMFS itself had run out of money and was concerned about budget appropriation. And so, they placed the onus for funding that monitor on the fishermen themselves. 

 

That case came up out of the D.C. Circuit as well, and there, the D.C. Circuit said that this rule was acceptable under Chevron. The Supreme Court accepted cert just recently on this case. And, interestingly, the question — there were two questions that it went up on. The first was whether or not the Court should just overrule Chevron directly. And the second was whether or not the statutory authorization, which I believe the words were “necessary and appropriate” because I think that was the Magnuson–Stevens Act —

 

Jane Luxton:  Yes.

 

Braden Boucek:  — whether that language permitted NMFS to have adopted the herring fishermen rule. And, interestingly and perhaps tellingly, the Supreme Court accepted cert review just on issue number one, specifically whether or not it should overrule Chevron. Is there anything you want to add to that summary?

 

Jane Luxton:  No. It’s fascinating. They zeroed right in on it, no fooling around. And so, we’re going to get the answer, I think. It’s pretty clearly teed up.

 

Braden Boucek:  Yeah. So the first question we have—which I was going to ask anyway, so I think it’s a great question—”How likely do you think it is that the Supreme Court is just going to overrule Chevron outright?”

 

Jane Luxton:  Well, if you look at the recent history in the Court, they don’t seem to have any shyness about overruling long-standing precedence; even Chevron was adopted in 1984. We’ve seen a couple of other highly noteworthy contexts. The Supreme Court just doesn’t back down or away just because, sometime earlier, the Court came out a different way.

 

Braden Boucek:  Yeah. And one of the things that is fascinating, maybe a point on the other side, I don’t know. Is that the Supreme Court has overturned a lot of significant agency action over the last two years. And it’s done so with scarcely talking about Chevron at all, which is probably a little bit responsible for why courts keep saying, “Should we name Chevron or shouldn’t we?” And, instead, it’s turned with increasing regularity to the major questions doctrine. Now, major questions didn’t come up—that I saw—in the lobstermen case; is that right?

 

Jane Luxton:  We raised it in passing, but not front and center. That has come up more often in the context where an agency is claiming authority, and there’s kind of a gap. Here, the context was very different. So, while it’s impossible these days to file any brief before the Supreme Court or the D.C. Circuit without at least alluding to it just in case that’s where they want to go, it really was not a front-and-center part of the appeal in the Maine lobstermen’s case.

 

Braden Boucek:  Now, when you said because there was a gap, what do you mean by “gap?”

 

Jane Luxton:  Well, the signature case, West Virginia v. EPA is the case where the major questions doctrine played the overriding importance in the decision. There, EPA was claiming it had authority on certain climate change rules. And they were not written into the statute. It was really an extension of existing authority that EPA reasoned gave them the ability to regulate in an area that was not foreseeable or foreseen at the time the Clean Air Act or that provision of it was adopted — enacted, rather. And so, that’s what I meant by “gap.” Their argument was the EPA could fill it, and the Supreme Court held that no, it couldn’t. On something that is that major a question, Congress really must speak. And if they don’t, you can’t assume that it would allow it or that it somehow could be embraced within the existing language. 

 

Braden Boucek:  Well, I’m curious as to your thoughts on this. Say there’s not a gap. Say it’s within the agency’s field. It’s not West Virginia v. EPA. It’s not CDC regulating eviction moratorium. The agency’s just taking some really broad, unheralded regulatory measure that was probably almost certainly not foreseen at the time that the law itself was enacted. Could an agency action just become big enough that it falls under the major questions doctrine, in your opinion?

 

Jane Luxton:  Yes. And, obviously, the APA, we all think of it as standing for arbitrary and capricious, but it also stands for in excess of statutory authority. It’s another part of the challenge language in the APA. So that would be a basis right there. 

 

But, yes, I think that’s what a major question is. Easier case if there really is a gap, but I think it would be a very interesting question to raise in a situation like the one you described.

 

Braden Boucek:  Yeah. And coming on the heels of Loper Bright is another challenge that cert petition has been filed on, called Relentless. That’s posted on SCOTUS blog as well. But Relentless came out of, I believe, the Second Circuit. It challenges the exact same NMFS rule at issue in Loper Bright. And, in that case, they’ve also asked the Court to, A, overrule Chevron, but also, B, take a look at the underlying statutory authority to enact regulations. 

 

Again, the scope of the language in question is simply this, “NMFS shall authority”—or NOAA, sub-agency—”shall have the authority to enact “necessary and appropriate language.” And, of course, you’re probably well aware, the code is just littered with regulatory authorizations that use language similar to “necessary and appropriate.” And that could be construed as very capacious language that would allow all sorts of agency action. But taken to extreme, it really does have a limiting principle. If it just meant as long as the agency thinks it’s necessary and appropriate, the fact that they enacted it is by definition evidence that they had authority to do it. 

 

But the alternative to it is that is actually some kind of discretionary cabining language. And I don’t know if we’ve got any real sense as to where the Supreme Court would land on that. I can tell you that lower courts have kind of been all over the map in how they interpret similarly vague and open-ended grants of authority.

 

Jane Luxton:  Yeah. And then there’s the delegation question too. 

 

Braden Boucek:  And then that, of course, would pose significant delegation questions if indeed it is a broad control of open-ended authority. At some point in time, it would seem to just be delegating a law-making function of that — 

 

Jane Luxton:  Correct. 

 

Braden Boucek:  — intelligible principle —

 

Jane Luxton:  Yeah. 

 

Braden Boucek:  — to an executive agency. So that’s an interesting similar case — 

 

Jane Luxton:  Yeah. 

 

Braden Boucek:  — to kind of keep an eye on. I’ll be interested to see whether the Court wants to take up a companion case or not. 

 

Well, while we have time, I want to also touch on some of the other NMFS actions that they’ve taken that may or may not kind of trigger the concerns we might have been talking about with major questions and NMFS authority before.

In 2008, NMFS enacted a little-known rule that applies to all boats 65 feet and up. And it imposes a 10-knot speed limit on those boats up and down the Eastern seaboard, in particular, areas during particular times of year called — and these are like seasonal zones that would apply. It’s also done in the name of protecting right whales. And, of course, in 2008, the agency was claiming that right whales stand on the precipice of extinction as well, and they needed to take this very dramatic action so as to prevent extinction. That seems to me to be another profound invocation of agency authority as well.

 

Jane Luxton:  Yes. And I was there. That was on my watch, that rule. And, definitely, there were heavy commercial impacts on the commercial shipping industry. That’s what 65 feet and above vessels generally are. And just like now, it was impossible to quantify the impact on whales.

 

But the rule never was that controversial in the sense nobody challenged it. And, as you said, it’s little known, so it didn’t really seem that radical at the time. Now, however—and I know this is an area you are very actively involved in—the agency has looked at the impact, not so much of the rule that you as you’ve talked about it, that part—the mandatory requirements on 65 feet and above. But there was, at the same time, a voluntary component to that rule that said vessels smaller than 65 feet were also asked to lower their speed to 10 knots in those seasonal management areas. And the reason they’re seasonal is that right whales migrate. They breed and have nurseries off the coast of Florida, and then they come north to forage for food in the summer.

 

So you probably should take over a little discussion now: what’s being proposed now and what you think the issues are.

 

Braden Boucek:  Yeah, absolutely. But you talked in the lobstermen scenario about how the data was actually not really there in terms of showing that right whales really were getting entangled in lobster fishing gear or that the regulation would do something to mitigate those harms. Was the data showing that boats are killing right whales more quantified more demonstrated than the lobster — than the lobster issue?

 

Jane Luxton:  Probably yes, because ship strikes leave different kinds of scars on right whales, and there are quite a few of them. The problem is always, ship strikes by whom? By what ships: Canadian ships, U.S. ships? What waters? So trying to figure out where’s the problem helps you define what’s the solution and whether it’s really based on data or just pessimistic benefit goes to the whales kind of reasoning.

 

Braden Boucek:  Yeah. And that’s a very good point. And you alluded to efforts to kind of expand that 2008 rule. And that’s out there. 

 

We just filed a comment a week or two ago over a proposal that NMFS just put out to initiate rulemaking that would impose a 10-knot speed limit on boats cruising in the Florida Gulf. And, for a perspective of the user, or for the listener, 10 knots is about the speed that a human would run at. And boats are, of course, designed to go much faster. Boats don’t plane out until they’re well in excess of 10 knots. And, of course, if you’re trying to reach a fishing hole, 10 knots is just not sufficient to get you to where you need to go such as you can go in and come out in a day. It may not even be safe to operate at that speed under certain weather conditions. 

 

And the current petition, having to do with the Florida Gulf, applies to vessels of all size and also imposes an effective curfew, saying that they can’t be out after dark. So it really is a much more dramatic gap that would have huge impacts on boaters and fishermen throughout the Florida Gulf. And I’m not just talking about big, heavy commercial vessels. I’m talking about the regular Joe who wants to go out in Tampa Bay and do some fishing for the day and come back. 

 

Do you see these rules sometimes just operating as a one-way ratchet that only go in one direction?

 

Jane Luxton:  Well, I guess, it looks that way, doesn’t it? And so, I wouldn’t attribute that to NMFS, although we’ve seen that they admitted straight out in the BiOp for the lobster fishery that that’s what they were doing. They were relying on pessimistic assumptions, worst case. What we have seen over and over again in environmental cases is it’s one conservative set of assumptions built on top of another one. And then you — by the time you’re finished, it’s so conservative, and there’s never any correction built into that. A reality sandwich just doesn’t exist, so there’s no gut check or anything like that that seems to be in operation.

 

Braden Boucek:  Yeah. No. And that’s a great point. When you have these petitions listed, they oftentimes come from people whose — from interest are surrounding environmental interests solely. They’re not concerned with economic impact so much. And, oftentimes, the tool in the toolbox for the regulator is more regulation. 

 

But one of the things that just strikes me—this is just an editorial aside—is we live in a day of just amazing technology. And a regulatory approach to this, as opposed to a technological approach, strikes me as strange. I could get in my car right now and turn on Waze and have instant knowledge about all the traffic patterns that are occurring everywhere in the United States in real-time. In the meantime, we’re talking about whatever 350 whales. It would seem to me that we might have technological ability that would not just not contain the same impact but would do a far better job of protecting endangered species. 

 

Boaters don’t want to hit whales. It’s bad for their boat. It’s bad for — it threatens the safety of their crew. Boaters care about wildlife as much as anybody. Instead of making enemies that I think they could easily be recruited as allies if there was just an ability to deliver real-time data about the location of where these species are. I’m sure that no boater would have any qualms whatsoever about just avoiding the whale. 

 

Jane Luxton:  Well, I agree with you. It’s hard for a rule to require that. And the only way it might otherwise happen is if Congress mandated it, data collection. NMFS says that it is dedicated to that. And now Canada—excuse me—has started doing a lot more monitoring. But unlike Waze, where there are cars everywhere picking up this data, you’d have to sync within thousands of miles of ocean. How do you do that?

 

So some things that — flights — airplane flights, are one way they collect data, but there’s only so much terrain, ocean terrain, that you could cover. 

 

Braden Boucek:  Yeah. 

 

Jane Luxton:  Drones might be another possibility. The difficulty — 

 

Braden Boucek:  Sonar. 

 

Jane Luxton:  Yeah. Well, that’s right. 

 

Whales have — there have been efforts to tag right whales, and some of them are so well-tagged you can look online and see exactly where a particular whale—and they’re all nicknamed—but it’s not every single right whale, and not every single right whale baby, and all the rest. So there are still, I think, some constraints on the capability of technology. But, certainly, if it’s a question of appropriating money for Congress to think about, maybe there would be approaches there that would make more sense, be more practical, and useful. 

 

Braden Boucek:  Yeah. No. That’s a good point. And I’m sure that the rule and enforcement of the rules they are proposing aren’t cheap either. And one wonders, just in strictly dollar value, which would be the better investment. I don’t know. 

 

And you make a good point. It’s certainly true that in some sense this tracking whales is more complicated. On the other hand, there’s also a lot fewer whales, unfortunately.

 

Jane Luxton:  Right. 

 

Braden Boucek:  I don’t know how that adds up. I just — it, though, just strikes me as something that I think begs for a technological solution. Of course, that would be done without any objection from anybody who’s a boater or a fisherman, or anybody in industry. 

 

Jane Luxton:  Yeah. NMFS thinks that it has — and the environmental groups strongly back what they think is the technological solution. And that is requiring ropeless fishing in the lobster fishery. What the Maine Lobstermen’s Association — and they had quite a few declarations in the course of that lawsuit saying that, while in theory, it’s a great idea. It’s not been scaled up above the pilot stage to prove whether it’s commercially viable. It also has other problems, including safety. 

 

Remember all those single boat captains who were out there? They can’t pull up — the electronic imagery may fail. And just the effort of trying to comply with the ropeless fishing pulling the buoys and the traps onboard presents safety problems as well. 

 

So not all technology is equal. And it depends — and who’s going to bear the cost of that technology? Well, that technology would be — the cost would be on the lobstermen. What we’re talking about, more surveillance and so forth, would be much more of a societally borne cost through federal or state, I guess, appropriations.

 

Braden Boucek:  Yep. And that kind of addresses one of the questions that popped up about how quickly could a technological fix be implemented. 

 

Jane Luxton:  Yeah. 

 

Braden Boucek:  There’s no way to know for certain, but it would certainly go faster if congressional appropriations were directed towards the —

 

Jane Luxton:  Right.

 

Braden Boucek:  — technological end rather than funding a regulatory measure.

 

In just a couple minutes we have left, I want to make sure we get to these remainder questions. 

 

Somebody asked if there’s any impact on whales in the preparation to setting up windmills in the Atlantic. 

 

I happen to know that there’s at least one legal challenge brought by Texas Public Policy Foundation. And somewhat counterintuitively, they brought it pursuant to the argument that the agency has not been adequately considering the impact of windmills when it’s been putting them up there, and that’s been endangering whales. And anybody can go find out a little bit more about that case by checking into Texas Public Policy Foundation.

 

There’s another question here that in addition to Loper Bright, what other SCOTUS cases are going to be taking on the administrative state next semester. I don’t know if you’ve got any thoughts on that one. 

 

Jane Luxton:  No. That’s the main one. We’re all watching it closely. 

 

You mentioned the Relentless cert petition. I haven’t been following that. Maybe you want to speak to that?

 

Braden Boucek:  Yep. Yeah. Relentless was the companion case to Loper Bright that I mentioned earlier. That’s the one that they were also asking to consider the Chevron question. 

 

Jane Luxton:  Okay. 

 

Braden Boucek:  But, also, they’re going further and asking the Court to consider the scope of the necessary and appropriate language, which, as I mentioned before, it’s just been — courts are just — have widely differing interpretations, even on the basic question of whether this is discretion cabining or discretion conferring. So maybe we’ll see if — we’ll see if the Supreme Court takes up that one as well. 

 

Jane Luxton:  Yeah. Those are the only two I know that are coming up in the next term.

 

Braden Boucek:  Great. 

 

Well, that’s all the questions I have for you, and our time is pretty much up. So I certainly appreciate all your time, Jane. And I see Sarah’s coming on to give me the hook, so I’ll mute and stand down. 

 

Sarah Bengtsson:  Well, I just want to thank both of our speakers today, Braden and Jane, for an excellent discussion. Thank you for sharing your time and your expertise with us.

 

And to our audience, thank you all for tuning in. 

 

You can find more of our content on our website at regproject.org or follow us on any major social media platform @fedsocrtp to stay up to date. 

 

With that, we are adjourned.

 

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Conclusion:  On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.

 

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