Center for Biological Diversity v. National Marine Fisheries Service

The federal district court for the District of Hawaii ruled that the National Marine Fisheries Service (NMFS) had failed to provide a reasoned explanation for its determination not to issue regulations under the Endangered Species Act (ESA) to protect threatened coral species in the Caribbean and the Indo-Pacific from the threats of climate change or to protect the Caribbean coral species from the localized threats of overfishing, water pollution, and habitat degradation. The lawsuit concerned NMFS’s May 2021 denial of Center for Biological Diversity’s (CBD’s) 2020 rulemaking petition requesting that NMFS promulgate regulations under ESA Section 4(d) to protect 20 threatened coral species. As a threshold matter, the court held that CBD had standing to bring the lawsuit based on alleged injuries to CBD members who had snorkeled and dove in the Indo-Pacific and Caribbean, had concrete plans to return to those areas, and alleged that “ongoing threats to corals imperil their continued observation and enjoyment of coral reefs.” On the merits, the court noted that NMFS had found climate change-related ocean warming, ocean acidification, and disease to be the greatest threats to the coral species but had concluded (1) that Section 4(d) regulations would have “limited effectiveness,” (2) that interagency consultation under ESA Section 7 would be “a more effective way” to address threats to the species, and (3) that promulgating Section 4(d) regulations would take resources away from higher priorities. The court found that these “conclusory assertions” were not sufficient even under the applicable “highly deferential” standard of review because NMFS failed to adequately state the reasons for its conclusions. Regarding the effectiveness of regulations, the court acknowledged that “[g]iven the scale and complexity of climate change, it is undoubtedly true that any regulation addressing it would have at most a ‘limited’ effect in addressing the problem,” but the court went on to state that the limited effect did not explain “why it is not still necessary and advisable to enact that regulation” because “[a] collection of limited effects can, after all, add up to something more significant.” The court said NMFS did not “necessarily need[] to cite directly‐on‐point data or studies to conclude that a proposed regulation would have no discernable effect in addressing a problem” but that NMFS’s denial “says nothing about why (or how) it might have judged the proposed Section 4(d) regulations to be as ineffective as it (supposedly) did.” The court similarly found that NMFS failed to offer reasons for its two other justifications for declining to promulgate regulations to address climate change threats. The court also found that NMFS did not provide a reasoned explanation for its conclusion that regulations to address localized threats to Caribbean corals were not necessary or advisable but found that NMFS did sufficiently explain its decision not to adopt regulations to address local threats to Indo-Pacific corals. (NMFS explained that eight of the 15 listed Indo‐Pacific corals occurred only outside of U.S. waters and that within U.S. waters, most activities causing incidental take are required to go through interagency consultation pursuant to ESA Section 7.) The court also found that NMFS provided sufficient explanation of its decision not to promulgate regulations prohibiting collection and trade of the corals under ESA Section 9. The court remanded to NMFS for further proceedings.