Summary
- The Oceans and Coasts Committee Report for The Year in Review 2024.
- Summarizes significant legal developments in 2024 in the area of oceans and coasts, including marine mammals, the Endangered Species Act, offshore wind, and more.
The Supreme Court overruled Chevron U.S.A. Inc. v. Natural Resources Defense Counsel, Inc. In 2023, the Court granted certiorari to Atlantic herring fishermen in two unrelated cases. Both cases involved challenges to a Magnuson-Stevens Fishery Conservation and Management Act (MSA) final rule that required fishermen to provide the National Marine Fisheries Service (NMFS) with advance notice of fishing trips and pay fishery observer fees whenever a government-paid fishery observer was not supplied. On appeal, the D.C. and First Circuits relied on Chevron, deferred to NMFS’s interpretation of the MSA, and affirmed the district court’s grant of summary judgment for the government. On June 28, 2024, in a 6 to 3 consolidated opinion, the Supreme Court vacated and remanded the cases to the lower courts to determine the best reading of the MSA. The Supreme Court held: (1) the U.S. Constitution gives courts sole authority to interpret the law; (2) historically, there was nothing resembling the deference that courts came to apply under Chevron; and (3) the Administrative Procedure Act (APA) provides courts with exclusive responsibility to decide questions of law. Each circuit court took a different approach to carrying out the remand order. In the D.C. Circuit case, supplemental briefings were filed, and oral arguments were held before a three-judge appellate panel. However, the First Circuit chose to remand its case to the Rhode Island district court for further consideration. Supplemental briefings were filed and the briefing is now closed. Both cases are expected to be decided by the courts sometime in 2025.
Commercial fishermen challenged NMFS’s rule, modifying the allocation of red grouper between certain fishing sectors. Plaintiffs alleged the rule violated the MSA and APA by relying on inconsistent economic analyses. On appeal, the D.C. Circuit partially reversed the district court’s grant of summary judgment for NMFS. The court held NMFS erroneously used methodology that the agency previously rejected. Without vacating the final rule, the case was remanded to NMFS to reconsider the economic analysis.
Plaintiff challenged NMFS’s approval of a fishery management plan amendment for Pacific sardine restoration, alleging violations of the MSA, APA, and the National Environmental Policy Act (NEPA). The district court held NMFS violated the MSA by failing to set catch limits that would timely rebuild the Pacific sardine population and by failing to use the best available science in setting overfishing limits. The court also held that the environmental assessment (EA) failed to take the hard look required by NEPA, NMFS relied on inconsistent and incomplete assumptions, and NMFS failed to consider the impact of the rebuilding plan on endangered humpback whales. The court vacated the portions of the amendment found to violate the MSA and APA and vacated the EA. The court remanded the matter to NMFS for further consideration.
The U.S. Army Corps of Engineers (Corps) was sued for violating the Marine Mammal Protection Act (MMPA) arising from the periodic opening of the Bonnet Carré Spillway (spillway), which is a structure used to divert water into Mississippi Sound to protect the City of New Orleans from flooding. Plaintiffs claimed the Corps was required to secure an MMPA authorization prior to opening the spillway since diverting water into the Mississippi Sound may result in “take” of marine mammals. The district court dismissed the case upon finding plaintiffs lacked standing. The court held: (i) plaintiffs failed to demonstrate that opening the spillway would always be harmful to marine mammals; (ii) the frequency and duration of the opening was too unpredictable; and (iii) relief was uncertain as it was dependent on the actions of NMFS. The court also declined to relax the standing requirements, and denied plaintiffs’ motion to amend its complaint.
After NOAA denied two conservation groups’ petition for the United States to ban the import of fish products from New Zealand under the MMPA, the petitioners sought declaratory and injunctive relief in the U.S. Court of International Trade. In November 2022, the court issued an injunction and ordered NOAA to ban New Zealand fisheries imports. The injunction was subsequently lifted and the case dismissed with prejudice based on the parties’ joint stipulations after New Zealand revised its conservation measures and NOAA published new findings.
This appeal involves the U.S. Fish & Wildlife Service (FWS) 2021 incidental take regulations for polar bears. The issues on appeal concerned the MMPA “negligible impact” and “small numbers” determinations. The court affirmed in part, holding that it was reasonable for the FWS to split the take by Level A harassment into serious and non-serious categories when making the “negligible impact” finding. However, the court reversed and remanded the case on the remaining issues. The court found the FWS committed reversible errors by failing to aggregate the serious and non-serious Level A harassment and by not calculating the five-year cumulative risk of Level A harassment. Despite these errors, the court declined to vacate the 2021 regulations because vacatur would have a disruptive effect on the industry.
NMFS issued a rule to clarify the scope of an exemption to a general prohibition, which restricts people from operating aircraft or approaching humpback whales within waters surrounding the Hawaiian Islands. The regulation, which became effective on January 22, 2024, clarifies that activities authorized through an NMFS permit or authorization are exempt from the general prohibition.
Following formal rulemaking and a hearing before an administrative law judge, NMFS issued a final rule that waives the moratorium on taking Eastern North Pacific gray whales for Makah Indian Tribe subsistence harvest purposes. The rule establishes a framework for the tribe to apply for subsistence harvest hunting permits to take up to ten gray whales in ten years in accordance with the Treaty of Neah Bay and a quota established by the International Whaling Commission.
On May 20, 2024, the Marine Mammal Protected Area Task Force of the International Union for the Conservation of Nature’s World Commission on Protected Areas announced forty-six new candidate Important Marine Mammal Areas (cIMMA) in the Northwest Atlantic Ocean and Wider Caribbean. IMMAs are discrete habitat areas that are important to marine mammal species, and are identified for governments, intergovernmental organizations, conservation groups, industry, and the public to prioritize consideration of conservation measures.
This appeal concerned a challenge to a 2019 NMFS biological opinion (BiOp) involving endangered Southern Resident killer whales and threatened Chinook salmon. In August 2022, the district court held that NMFS erred in issuing an ESA incidental take statement (ITS) that allowed Chinook salmon harvest, thereby reducing prey for the endangered whales, and in approving a funding program for Chinook salmon hatcheries. The district court vacated the ITS, but upheld the prey increase program. On appeal, the Ninth Circuit reversed in part, holding the district court failed to consider the disruptive effect of vacatur on the community. But, the Ninth Circuit affirmed the prey increase program.
NMFS was sued for violating the APA and ESA by underestimating the risks of harm to protected species arising from oil and gas extraction activities in the Gulf of Mexico and failing to propose adequate mitigation measures in the BiOp. The district court granted summary judgment for plaintiffs and vacated the BiOp. The court held NMFS erred by deferring to the Bureau of Ocean Energy Management (BOEM) instead of making an independent determination on the risk of an extremely large oil spill, the BiOP included contradictory statements, the BiOp did not address whether an extremely large oil spill would jeopardize the survival and recovery of protected species, and NMFS failed to consider the likelihood of smaller catastrophic spills and the consequences of such spills on protected species.
The Natural Resources Defense Council and others (NRDC) sued the U.S. Bureau of Reclamation (BOR) and the FWS for violating the APA and ESA. NRDC claimed that BOR failed to adequately consult on the effects of renewal of the Central Valley project water supply contracts on ESA-protected delta smelt. NRDC also claimed BOR failed to reinitiate consultation with NMFS after receiving new information about the ecological effect of the action on Chinook salmon. The district court granted summary judgment for the government, and the appellate court affirmed. On appeal, the court held that FWS did not fail to consult on the contract renewals’ effects on delta smelt, FWS used the best available science, appropriately relied on the BiOp, properly accounted for changes in environmental conditions, and sufficiently considered the full scope of effects. The court further held that BOR did not violate the ESA by relying on the FWS consultation, and BOR did not fail to reinitiate consultation with NMFS.
Environmental advocacy organizations sued the Corps and NMFS for violating the Clean Water Act, NEPA, the ESA, and the APA. The allegations concern a year-long planned dredging project in San Juan Harbor whereby barges were to be used to transport dredged material from the shipping channel. The Corps’ EA concluded the project would not significantly impact the environment. Additionally, NMFS’s BiOp determined that the project was not likely to adversely affect threatened and endangered species. The plaintiffs alleged that the agencies failed to adequately consider the environmental tolls of the project. The appellate court affirmed and held that the agencies did not act arbitrarily or capriciously.
For six years, conservation groups have sued NMFS for not adequately protecting endangered North Atlantic right whales in violation of the ESA, the MMPA, and the APA. In 2022, the district court ruled for the plaintiffs, finding deficiencies in NMFS’s 2021 biological opinion (BiOp) and its 2021 Final Rule. Congress enacted the Consolidated Appropriations Act of 2023 (CAA), which imposed a six-year pause on existing right whale conservation measures until 2028, deeming the Final Rule sufficient. A 2023 lawsuit by the Maine Lobstermen’s Association resulted in vacating the 2021 BiOp and remanding the Final Rule without vacatur. The district court granted the government’s motion to dismiss, finding the plaintiffs’ challenge to the 2021 BiOp and Final Rule moot. The court also vacated its prior opinion due to the CAA and the 2023 appellate court opinion.
In 2012, NMFS listed the Arctic ringed seal as threatened under the ESA. In 2019, the State of Alaska and other entities (State) petitioned NMFS to delist the seal. For support, the State relied on the FWS decision not to list the Pacific walrus, the Intergovernmental Panel on Climate Change’s Fifth Assessment Report (AR5), and post-listing biologic and population data. NMFS found the petition did not present substantial scientific or commercial information for delisting the seal. The state sued, alleging NMFS applied the wrong legal standard in violation of the APA. The district court upheld NMFS’s decision upon finding that the agency provided a reasonable explanation for its decision. On March 16, 2024, the State appealed to the Ninth Circuit, and a briefing schedule was established. A decision is anticipated from the Ninth Circuit sometime this year.
An environmental group challenged the Corps’ nationwide permit authorizing the installation of finfish aquaculture structures in federal waters. The plaintiffs argued the Corps failed to adequately assess the environmental impacts of the action. The district court found the Corps’ permit did not comply with procedural requirements of the Rivers and Harbors Act (RHA) and NEPA. The court held the Corps’ EA was inadequate and failed to fully account for the environmental impacts from the aquaculture activities. The court further held the Corps did not exceed its authority in issuing the permit and denied plaintiff’s request to vacate. The court has ordered the parties to submit recommendations on an appropriate remedy. The briefing schedule closed on January 17, 2025.
The FDA issued a rule amending the agricultural water provisions in the produce safety regulation. The new rule replaces pre-harvest water testing requirements with a new regulatory approach. The final rule incorporates recent science and outbreak findings, ensures flexibility for various water systems and farm types, and aims to address microbial contamination and reduce foodborne illnesses.
This appeal involves a district court’s grant of summary judgment for the federal government on ESA, NEPA, and other claims challenging approvals of the Vineyard Wind 1 project, a commercial offshore wind energy facility off Massachusetts. This is one of three appeals decided by the First Circuit in 2024. The appellants claimed that NMFS violated the ESA by issuing a flawed BiOp, and BOEM violated NEPA by relying on that BiOp. The appellate court affirmed the district court and held that NMFS properly analyzed the current status and environmental baseline of endangered North Atlantic right whales. The court also held that NMFS’s analysis of scientific literature was reasonable and the agency's decision was not arbitrary or capricious. Finally, the court held that BOEM properly relied on the BiOp. The appellants filed a petition for a writ of certiorari with the U.S. Supreme Court. On January 13, 2025, the Supreme Court denied certiorari.
This consolidated appeal was taken from cases challenging the district court’s grant of summary judgment for the federal government in two other disputes involving the Vineyard Wind 1 project. Reviewing the district court’s opinion de novo, the First Circuit affirmed. The court held the organizational appellants had not timely provided proof of associational standing, and said appellants could not complain about the federal approval while reinitiation of ESA consultation was underway. The MMPA claims failed for lack of standing because the appellants did not show that protection of marine mammals was germane to their organization’s purpose. The court also held the NEPA decision was not arbitrary.The appellants have filed a petition for a writ of certiorari with the U.S. Supreme Court.
The third appeal involves a challenge to the MMPA incidental harassment authorization associated with the Vineyard Wind 1 project. The First Circuit affirmed the district court’s grant of permissive intervention by the offshore wind developer and entry of summary judgment for the federal government. The court rejected the appellant’s objections to permissive intervention and concluded the offshore wind developer did not have to independently establish Article III standing prior to intervening in the litigation. The court further held that there was no abuse of discretion in the district court’s finding that the offshore wind developer had a significant stake in the litigation. As it relates to the appellant’s merit-based arguments, the First Circuit upheld the government’s interpretation of several key terms under the MMPA and held the government’s decision was not arbitrary.
BOEM and the Bureau of Safety and Environmental Enforcement (BSEE) revised the existing renewable energy regulations issued under the Outer Continental Shelf Lands Act (OCSLA) to facilitate the development of offshore wind renewable energy resources, and establish a leasing schedule.
BOEM announced a new offshore wind lease schedule that includes up to twelve (12) lease sales over a five (5) year period starting on May 1, 2024 through 2028. Future lease sales are anticipated in the Atlantic, the Gulf of Mexico, the Pacific, and waters offshore of various U.S. territories, such as American Samoa, Guam, Northern Mariana Islands, or the U.S. Virgin Islands.
NOAA and BOEM published the North Atlantic Right Whale and Offshore Wind Strategy (Strategy). North Atlantic Right Whales are listed as endangered under the ESA and depleted under the MMPA. The Strategy is part of a large interagency effort to protect and promote recovery of the whales while responsibly developing offshore wind energy.
The Maryland Governor signed a bill that requires the Maryland Public Service Commission (Commission) to reevaluate and revise existing offshore wind project plans. The new law prohibits the Commission from approving an offshore wind project if it does not include in-State expenditures and investment commitments; provides renewable energy tax credits to offshore wind developers; and sets a state goal of deploying 8,500 megawatts of offshore wind energy by 2031.
Oregon House Bill 4080A reinforces the State’s commitment to robust public engagement between offshore wind energy developers and organizations, communities, and tribes impacted by future development.
The Massachusetts Governor signed a clean energy bill that would allow for future offshore wind contracts to be set for up to a 30-year term instead of the previous 20-year maximum. The law requires the Massachusetts Department of Energy Resources (DOER) to evaluate the effectiveness of existing solicitations in meeting state emission and labor standards; establish guidance on long-term power purchase agreements between offshore wind developers and municipalities; and expand existing tax credits to certain offshore wind employers with 50 full-time employees.
i. Vineyard Wind Resumes Installation
In mid-December 2024, Vineyard Wind and its construction contractor, GE Vernova, announced that blade reinstallation activities were started at its offshore wind farm off Massachusetts following a blade malfunction incident. The BSEE suspension order was lifted, and once construction is completed, the project is expected to generate enough clean energy to power 400,000 Massachusetts homes and businesses, create approximately 3,600 full-time equivalent job years, save customers approximately $1.4 billion over the first 20 years of operation, and reduce carbon emissions by more than ~1.6 million metric tons per year.
ii. Beacon Wind Paused Activities to Evaluate Project Design
Beacon Wind is an offshore wind facility planned for construction and operation more than a dozen nautical miles south of Nantucket, Massachusetts, and east of Montauk, New York. For the past six months, the permit timetables for the project were paused to provide the developer additional time to evaluate and determine the final project design envelope, obtain feedback from stakeholders and agencies, and decide whether to submit an updated Construction and Operation Plan.
South Fork Wind is completed and is delivering 130 megawatts of clean energy to more than 70,000 homes and businesses in Long Island and the Rockaways. This achievement represents progress toward the State of New Jersey’s Climate Act goal of deploying 9,000 megawatts of offshore wind energy by 2035.
ii. Atlantic Shores South Offshore Wind
Atlantic Shores Offshore Wind South Project received federal approval to construct and operate two wind energy facilities approximately 8.7 statute miles off New Jersey. Together, both facilities are expected to deliver 2,800 megawatts of clean, renewable energy to one million homes. The approval is controversial and is anticipated to generate a lawsuit from local New Jersey citizen groups.
A citizens group (Petitioners) challenged the U.S. Department of Transportation’s (DOT) decision to approve a license to build a deep-water oil facility off Texas. Petitioners argued the approval violates the Deepwater Port Act (DPA) and NEPA because it is not supported by a well-reasoned environmental impact statement. The Fifth Circuit denied the petition for review upon finding that the DOT adequately considered the environmental consequences of the facility before approving the deep-water port license.
Plaintiffs challenged an offshore oil and gas lease agreement in Cook Inlet, Alaska, facilitated by BOEM pursuant to the Inflation Reduction Act. Plaintiffs asserted the lease agreement violated NEPA because it was arbitrary and capricious. The plaintiffs further claimed that (1) BOEM’s Final Environmental Impact Statement was deficient because it failed to analyze alternatives and arbitrarily rejected other reasonable alternatives that would have reduced environmental impacts, and (2) BOEM failed to take a hard look at the impact to Beluga whales. The district court ruled in favor of the plaintiff, and remanded the case to BOEM, instructing the agency to prepare a supplemental environmental impact statement addressing the deficiencies and suspend the lease.
BOEM updated its risk management and financial assurance rules for oil, gas, and sulfur operations on the Outer Continental Shelf. The rule revises criteria for requiring financial assurance beyond minimum bonding requirements, streamlines financial evaluations, incorporates BSEE’s decommissioning cost estimates, and clarifies bonding for certain leases. BOEM requires $6.9 billion in new financial assurance to reduce risks to the government and taxpayers.
The D.C. Circuit held that the White House Council on Environmental Quality (CEQ) has no authority to issue binding regulations implementing NEPA. This decision stems from a challenge against the FAA and National Park Service for allegedly failing to comply with NEPA when the agencies relied on a categorical exclusion before issuing tour flight plans over national parks throughout the United States. Petitioners argued the agencies impermissibly used the existing level of flights under interim operating authority as the baseline against which the agency measured the environmental effects of the new plan. Without the issue being raised by any party, two members of the three judge panel decided, sua sponte, “once and for all” that NEPA does not provide authority for CEQ to issue binding regulations. The court held that NEPA establishes CEQ within the Executive Office of the President to provide guidance, and a 1977 executive order that required all federal agencies to comply with those guidelines violated the separation of powers by attempting to delegate rulemaking authority to CEQ. The court found for the Petitioner. The parties now seek a rehearing en banc (i.e., before the full court).
The MSA grants regional Fisheries Management Councils (Councils) pocket-veto powers to block the Secretary of Commerce from (1) setting limits on who can fish in each fishery; (2) delegating fishery management to a state; and (3) repealing a fishery management plan. The councils also exercise advisory functions under the MSA. Mid-Atlantic commercial fishermen challenged a regulation that lowered the fishery catch limit. The fishermen sought to have the regulation set aside because the council members were principal officers whose veto powers violate the Appointments Clause of the U.S. Constitution since none of the Mid-Atlantic Council members were appointed by the President and confirmed by the Senate. On appeal, the court reversed the district court’s order granting summary judgment for the government. The court held the pocket-veto was unconstitutional and severed the provisions granting veto power to the council. But, the court upheld the councils’ advisory functions. Without the veto powers, members of the Councils fall outside the Appointments Clause.
Petitioners sought review of FERC’s reauthorization of two liquefied natural gas export terminals and a pipeline, alleging violations of NEPA, the APA, and the Natural Gas Act. The appeal arises from a prior D.C. Circuit decision remanding the matter upon finding that FERC failed to adequately analyze climate change and environmental justice impacts. In this subsequent appeal, the D.C. Circuit held that FERC committed harmless error by declining to prepare a supplemental environmental impact statement to address the updated environmental justice analysis and by failing to consider the carbon capture and sequestration system for one of the terminals. However, the court further held that the agency’s explanations for rejecting the use of air quality data from areas closer to the projects were arbitrary and capricious. The court vacated and remanded the matter to the agency.
After NMFS issued a rule to limit human interaction with spinner dolphins in Hawaii, some residents filed a lawsuit arguing the rule was unconstitutional under the Appointments Clause. The claimants argued the rule’s author, the NMFS Deputy Assistant Administrator for Regulatory Programs, was not qualified to issue this regulation because he was not appointed by the President and confirmed by the Senate. The district court granted the government’s motion for summary judgment upon finding that the NOAA Administrator, who is appointed President with the consent of the Senate, ratified the regulation, which cures any Appointment clause defects and resolves the procedural dispute.
On October 24, 2024, the U.S. Department of Justice (DOJ) announced it had reached a settlement for over $100 million in a civil lawsuit against the owner and operator of the motor vessel (M/V) DALI that destroyed the Francis Scott Key Bridge in Baltimore, Maryland on March 26, 2024. The settlement resolves the United States’ claims for civil damages under the Rivers and Harbors Act, Oil Pollution Act, and general maritime law. The M/V DALI was bound for Sri Lanka when it lost power and struck the bridge. The bridge collapsed and plunged into the waters of the Fort McHenry Channel, killed six people, obstructed the navigable channel, and brought all shipping to a standstill. The settlement covers the Federal government’s response and clean up costs. The settlement does not include any damages for the reconstruction of the bridge.
On September 20, 2024, pursuant to the Vessel Incidental Discharge Act of 2018 (VIDA), the EPA finalized national standards of performance for incidental discharges from non-recreational, non-Armed Forces vessels 79 feet in length and above, as well as ballast water discharges only from fishing vessels of any size and non-recreational, non-Armed Forces vessels less than 79 feet in length. VIDA established one federal discharge requirement for commercial vessels and replaced the patchwork of state, local, and federal regulations. Two years after publication of the final Vessel Incidental Discharge National Standards of Performance, the U.S. Coast Guard (USCG) is required to develop corresponding implementation, compliance, and enforcement regulations, including any requirements governing the design, construction, testing, approval, installation, and use of devices necessary to achieve the EPA standards.
In 2024, President Biden advanced his America the Beautiful Initiative by designating two new national marine sanctuaries. On June 5, 2024, NOAA designated, as a national marine sanctuary, a 1,722 square mile area in eastern Lake Ontario adjacent to New York’s Jefferson, Oswego, Cayuga, and Wayne counties. The new sanctuary features a collection of forty-one known shipwrecks and one known submerged aircraft, regarded as one of the best preserved in the world. On October 11, 2024, NOAA designated 4,543 square miles of coastal and offshore waters along 116 miles of California’s central coast as the Chumash Heritage National Marine Sanctuary. The sanctuary conserves the area’s diverse range of marine life and celebrates the Indigenous peoples’ connections to the region. Stretching from south of Diablo Canyon Power Plant in San Luis Obispo County to the Gaviota Coast in Santa Barbara County, the sanctuary brings comprehensive community- and ecosystem-based management to nationally significant natural, historical, archeological, and cultural resources — including kelp forests, rocky reefs, sandy beaches, underwater mountains, and more than 200 NOAA-documented shipwrecks.