A Landmark Victory Protecting the Future of Our Oceans, Many Years in the Making
Trump Administration’s arguments that it can regulate fish farming as fishing don’t hold water
By George Kimbrell, Sylvia Wu, and Amy van Saun, Center for Food Safety attorneys
This month we are celebrating a landmark legal victory for our oceans and fishing communities! The U.S. Court of Appeals for the Fifth Circuit sided with Center for Food Safety (CFS) and allies, deeming illegal the Department of Commerce’s decision that would have permitted, for the very first time, large-scale, polluting aquaculture offshore in U.S. federal waters and deep-sixing the program. This huge victory comes after a two decades-long fight in Congress, at the agency level, and finally in the courts the last 4 years, during which the Trump Administration has continually put out its typically loud but meaningless propaganda in support of greenlighting the new industry, without regard for its known destructive effects to oceans, wild fish, and the coastal fishing communities that depended on them.
We have seen this movie before: fighting to prevent industrial aquaculture’s installation in our oceans is like trying to prevent our industrial animal factories of pigs and cows on land, before they are polluting our water, soil, and food. Like factory farms growing poultry and livestock for meat and dairy products, industrial aquaculture is the mass breeding, farming, and harvest of finfish and shellfish in underwater nets, pods, and cages. And just like its land-based factory farm counterparts, industrial aquaculture is full of false promises of cheap and plentiful food, while jeopardizing our aquatic ecosystems and endangered species. Industrial aquaculture operations cause serious environmental, health, and societal impacts that we simply cannot ignore in pursuit of profit. We know this because everywhere else in the world they have been adopted they have already caused these harmful impacts.
Fortunately, this month’s Court ruling protects our fragile ocean resources from the many threats posed by offshore aquaculture. Continue reading to learn more about the importance of this case, and why industrial aquaculture is NOT the way forward when it comes to sustainable seafood production.
Overview of Our Case
CFS filed the case in 2016 on behalf of a broad coalition of environmental and fishing groups, after the Department of Commerce issued rules allowing industrial aquaculture in the Gulf of Mexico, as the test region for similar schemes in all U.S. ocean waters. Unlike existing aquaculture operations in the U.S. — the majority of which are nearshore operations for shellfish and shrimp — the government’s proposal would have extended industrial fish farms out of state coastal zones and into deep ocean waters offshore (3 to 200 miles!) for the production of large marine finfish such as tuna and amberjack (commonly known as yellowtail).
Two years into our case, in 2018, the Federal District Court for the Eastern District of Louisiana agreed with our arguments about the Commerce rules, and held that the agency grossly overstepped its authority: existing fishing law was never intended to regulate the different and novel harms of aquaculture, or the farming of fish in net-pens. The Department knew this and tried to get new authority from Congress between 2004 and 2012 annually, but when they were defeated, decided to attempt the massive and unprecedented new ocean farming activity anyway, using its “fishing” authority. The Court torpedoed these arguments.
The Trump Administration appealed, fishing for a reversal, but CFS and allies refused to back down. The Court of Appeals in New Orleans held argument in January 2020, and issued its decision August 3, 2020. And the appellate court refused to take the bait: A majority of the judges agreed with the district judge. Absent new authority from Congress, industrial aquaculture, with its harms to commercial and recreational fisheries, and environment and imperiled species, cannot be permitted in the U.S. federal waters of the Gulf under existing law. And since the federal regulatory scheme for the Gulf waters was the government’s test case, the ruling will have ripple effect (pun intended) of halting industrial fish farms from being built in U.S. marine waters. In short, the victory sunk the bad idea and the entire legal theory on which was based.
Myths Busted: The Problem with Offshore Industrial Aquaculture
If not shut down by the courts, the federal permitting scheme would have allowed industrial facilities to collectively house up to 64 million pounds of farmed fish each year in the Gulf. To give some idea of this size, that’s the same amount of total wild fish caught on average each year in the Gulf! These industrial aquaculture facilities cause many serious environmental and health concerns, including: the escape of farmed fish into the wild; outcompeting wild fish for habitat; food and mates or intermixing with wild fish and altering their genetics and behaviors; the spread of diseases and parasites from farmed fish to wild fish and other marine life; and pollution from excess feed, wastes, and any antibiotics or other chemicals used flowing through the open pens into natural waters.
In addition to ecological and public health risks, industrial aquaculture can also come with significant socioeconomic costs. A massive amount of cheap fish would have drown the local fishing communities and their markets and employment, communities that have for generations lived by the ebb and flow of the Gulf. The rules would have allowed aquaculture operations for the first time to privatize large swaths of the ocean, banning fishing boats from what has always been a resource held in the public trust.
And contrary to often-repeated myths that farmed fish production helps alleviate pressure on wild fish stocks, industrial aquaculture has actually been shown to worsen wild fish declines. To farm large fish requires trawling the ocean bottom for wild forage fish, like menhaden or anchovies, to grind up and feed them. The industry’s ever-growing demand for feed jeopardizes the survival of wild fish and disrupts the balance of the marine ecosystem.
The appeals court affirmed that the Department of Commerce’s legal claims did not float: it overstepped its bounds in trying to allow a new offshore aquaculture industry under 1970s laws that regulate fishing, clearly never intended for that purpose. Indeed, there is no federal regulatory scheme in place that would examine the unique harms of offshore aquaculture. Instead, the current administration should support America’s struggling fishing communities and work to develop a comprehensive regulatory scheme that would promote modern, sustainable methods of additional seafood production, like recirculating land-based farming.
Despite the tidal victory, industrial aquaculture proponents and their cheerleaders in their Trump Administration are still angling for unlawful other ways to put fish farms in our waters. Even though there can be no full industry now, proponents may attempt “experiments” instead, requiring more litigation. And, amid the ongoing COVID-19 pandemic, the Trump Administration issued a sound-and-fury, signifying nothing executive order mandating federal agencies to craft a program for rapid authorization of aquaculture farms under the patchwork of existing laws. [Of course, the Courts have now already rejected this very idea.] As we have always done, CFS will continue to watchdog these attempts to circumnavigate the law, and advocate for sustainable seafood production, based only on rigorous federal regulatory authority that first protects wild fisheries.
What You Can Do
If we’ve learned anything from the devastation 20th century industrial agriculture has caused to our planet, our food, and our family farmers, it is that we most definitively do not want that model for our 21st century oceans. Particularly when government is held hostage to special interests, it’s up to us as the public to safeguard the public interest, hold our government accountable, and protect our oceans for future generations. Join CFS’s True Food Network to help build a sustainable and regenerative food future, today!