On June 16, 2023, in a highly anticipated decision, the United States Court of Appeal for the D.C. Circuit set aside a biological opinion regarding the effects of the federal lobster fishery on the North Atlantic right whale (Eubalaena glacialis). The court held that a presumption in favor of an endangered species is not required by the Endangered Species Act (ESA) and, further, that such a presumption can distort the agency’s scientific judgment and did so in this circumstance.

The National Marine Fisheries Service (NMFS) issued the biological opinion in 2021 analyzing the effects of several fisheries along the East Coast on listed species, including effects of the lobster fishery on the right whale. The task was made difficult by the fact that the right whale population, which had been on an upward trajectory for decades, took a turn for the worse starting around 2010 that has lasted more than a decade. Adding to this difficulty is the reality that data on the sources of right whale mortality is limited.

In this context, NMFS explained that, when analyzing the effects of the lobster fishery on the right whale, it resolved uncertainties in favor of the species, providing the benefit of the doubt to the species. In its decision, the court rejected the contention that the ESA requires or even allows a substantive presumption in favor of a listed species. The role of NMFS in section 7 consultations, the court reasoned, is to provide expert assistance by making a prediction about the effects of the action on the listed species. “Nothing in § 7 requires ‘distorting the decisionmaking process by overemphasizing highly speculative harms’ whenever the available data is wanting.”

The court went on to critique the rationale employed by NMFS both in interpreting the ESA and applying the statute in this context. With respect to the agency’s interpretation of the ESA, the court opined: “[NMFS] misconceived the law, wrongly claiming the legislative history of the ESA had ordained—if legislative history could ever ordain—a precautionary principle in favor of the species.” With respect to the agency’s application of the thumb-on-the-scale approach in the biological opinion, the court held NMFS “must strive to resolve or characterize the uncertainty through accepted scientific techniques, not jump to a substantive presumption that distorts the analysis of effects and creates false positives.”

The court vacated the biological opinion, while noting that provisions including in the Consolidated Appropriations Act, Pub. L. No. 117-328 (2022), will protect NMFS and the fishery while the agency develops a new biological opinion. Nossaman represents the State of Maine Department of Marine Resources, appellant-intervenors in the case.