In a recent decision, the U.S. Court of Appeals for the D.C. Circuit held that the language and statutory history of section 7 of the Endangered Species Act (ESA), requiring an agency to rely upon the “best scientific and commercial data available,” prevents the National Marine Fisheries Service (NMFS) from making speculative, worst-case assumptions about whether a fishery is “not likely” to jeopardize a protected whale species’ survival. Maine Lobstermen’s Ass’n v. Nat’l Marine Fisheries Serv., 70 F.4th 582, 599–600 (D.C. Cir. 2023). More broadly, the court also rejected the argument that in cases where an agency must make a decision or issue a permit based on an activity’s alleged environmental or biological impacts, the agency (and a reviewing court) must apply a non-statutory “precautionary principle” in favor of a protected species. Instead, the court found that the precautionary principle—a presumption that activities with uncertain impacts will cause harm to species and should not be allowed—is generally improper absent an express statutory basis. The time to petition for rehearing has now passed, and the decision is a binding precedent likely to be invoked in many administrative and judicial contexts.
LINKS
Read “The Endangered Species Act and the Precautionary Principle: The D.C. Circuit’s Maine Lobstermen’s Decision Has Legs,” authored by Stacey Bosshardt, published by The Foundation for Natural Resources and Energy Law.