Court: Trump aquaculture ‘regime’ overstepped authority

By Rob Hotakainen | 08/04/2020 01:23 PM EDT

A federal appeals court said NOAA Fisheries lacks the legal authority for permitting aquaculture in federal waters without approval from Congress.

A federal appeals court said NOAA Fisheries lacks the legal authority for permitting aquaculture in federal waters without approval from Congress. Dane Klinger/Oregon State University/Flickr

NOAA Fisheries lacks the legal authority to regulate aquaculture in the Gulf of Mexico, a federal appellate court in Louisiana ruled yesterday, delivering a major blow to the Trump administration’s long push to allow industrial fish farms in federal waters.

In a 2-1 ruling, the 5th U.S. Circuit Court of Appeals in New Orleans rejected NOAA’s argument that it could issue aquaculture permits because of the 1976 Magnuson-Stevens Fishery Conservation and Management Act to regulate the "catching, taking or harvesting of fish."

"’Harvesting,’ we are told, implies gathering crops, and in aquaculture the fish are the crop," the judges said in their decision. "That is a slippery basis for empowering an agency to create an entire industry the statute does not even mention. We will not bite."


The appellate court affirmed a 2018 decision by U.S. District Judge Jane Triche Milazzo, who ruled that NOAA only had authority to regulate the "traditional fishing of wild fish" and that if Congress meant for the agency to oversee fish farming, lawmakers would have made that explicit in the nation’s primary fisheries law (Greenwire, Oct. 4, 2018).

"The act neither says nor suggests that the agency may regulate aquaculture," the appellate judges wrote. "The agency interprets this silence as an invitation, but our precedent says the opposite: Congress does not delegate authority merely by not withholding it."

Agreeing that the Trump administration had exceeded its authority by devising a fish farming "regime" in the Gulf of Mexico, the judges said only Congress had the power to grant such powers to NOAA.

"If anyone is to expand the 40-year-old Magnuson-Stevens Act to reach aquaculture for the first time, it must be Congress," they said.

For greens, ‘a landmark victory’

The ruling marked a big win for green groups that have spent years battling the federal government over aquaculture proposals.

"The administration could try to bring this to the U.S. Supreme Court, but I hope they don’t," Marianne Cufone, executive director of the Recirculating Farms Coalition, an environmental group and a plaintiff in the lawsuit, said this morning.

"The push for an offshore marine finfish farming industry has already wasted hundreds of thousands [of] public dollars."

George Kimbrell, the legal director for the Center for Food Safety, called the ruling "a landmark victory protecting our oceans and fishing communities."

"Allowing net-pen aquaculture and its environmental harms in the Gulf of Mexico is a grave threat, and the court properly held the government cannot do so without new and proper congressional authority," he said. "Aquaculture harms cannot be shoehorned under existing law never intended for that purpose."

While yesterday’s ruling dealt with aquaculture only in the Gulf of Mexico, opponents are confident it will have national implications and make it easier to thwart any similar projects proposed elsewhere.

Congress has shown little appetite for advancing aquaculture legislation in recent years, though proponents hope they have a better shot as technology to grow fish has improved and a broader coalition of interests has emerged to push the idea.

Cufone said NOAA should just abandon the idea, with the public having "loudly and repeatedly rejected development of an offshore marine finfish aquaculture industry in the U.S. through protests, letters, in-person testimony and more."

"It is long time for the administration to hear this clear message and use resources to support our currently struggling fishing communities and related businesses rather than continue to push an outdated and unnecessary industry," she said.

It’s uncertain how NOAA will react to its latest setback.

"NOAA Fisheries is aware that the Fifth Circuit issued a decision affirming the lower court’s decision about aquaculture under the Magnuson-Stevens Act," Kate Goggin, spokeswoman for NOAA Fisheries, said in an email this morning. "NOAA Fisheries is reviewing the Fifth Circuit decision."