Court of Appeals Backs Environmentalists: Federal Greenlight of Industrial Shellfish Aquaculture Unlawful

Today, the U.S. Ninth Circuit Court of Appeals affirmed Center for Food Safety's (CFS) and Coalition to Protect Puget Sound's (CPPSH) victory in their lawsuits seeking to revoke the Clean Water Act general permit used to authorize the vast majority of commercial shellfish aquaculture in Washington state.

"This is a major victory for our shorelines and marine wildlife, and an unmistakable message to the Corps that it cannot flout its duties to protect our environment," said Amy van Saun, senior attorney at Center for Food Safety and counsel in the case. "The Court confirmed what we have argued for years: Industrial aquaculture has seriously harmful environmental impacts and regulators must rigorously evaluate them when deciding whether or not to allow it."

In October 2019, the Federal District Court for the Western District of Washington ruled in CFS's favor, finding the U.S. Army Corps of Engineers' (Corps) issuance of Nationwide Permit 48 (NWP 48) for commercial shellfish aquaculture unlawful, including for failure to adequately evaluate cumulative impacts to the environment from the tens of thousands of acres of aquaculture. In June 2020, the court vacated the permit, finding that the Corps' errors went to the "heart" of the Clean Water Act and National Environmental Policy Act and the potential harm to the environment outweighed the economic consequences. Although the district court did allow some activities to go forward, including planting through the remaining 2020 season and harvest through March 2022, the aquaculture industry groups appealed the decision and appellate argument was held on February 2, 2021.

Today, the 3-judge appellate panel unanimously agreed with the District Court, holding that the Corps failed to support its approval of NWP 48, violating the Clean Water Act and National Environmental Policy Act. Describing the Corps' reasoning as "illogical," the Court focused on its failure to analyze the admitted cumulative impacts of adding industrial-scale shellfish aquaculture to an already-impaired environment, and its reliance on a "limited scientific study" to justify a much broader determination of minimal impacts. The Court further rejected the Industry Appellants' attempt to supply reasoning for the Corps that the agency itself never articulated. Finally, the Court confirmed that the Corps may not rely entirely on later review to justify a nationwide permit and national environmental assessment.

"The Coalition to Protect Puget Sound is very pleased with the court's ruling. It sends a clear message to the Corps that things need to change. We hope the Corps is listening," said Laura Hendricks, director of the Coalition to Protect Puget Sound Habitat.

As to the district court's partial nullification of the permit, the Court of Appeals held that full vacatur is the presumptive remedy and upheld Judge Lasnik's compromise remedy, rejecting the Industry Appellants' claim that the court was required to allow "nearly 900 aquaculturists to continue their operations in full without any further review by the Corps."

The appeal was pursued by industry trade group PCSGA and Taylor Shellfish. The Corps itself did not appeal the Judge's decision and has already re-issued NWP 48, along with 15 other NWPs, although the Biden Administration has signaled it will review these NWPs. CFS and other groups recently notified the Corps of their intent to sue for failure to ensure the protection of endangered species before issuing these permits.

Center for Food Safety is represented by its attorneys Amy van Saun and George Kimbrell. Coalition to Protect Puget Sound Habitat is represented by Karl G. Anuta (Law Office of Karl Anuta), Thane Tienson (Lanye Bennet Blumstein, LLP), and Mike J. Sargetakis (Oxbow Law Group).