The U.S. Supreme Court has an opportunity to do right by the environment, the economy, and the rule of law, by agreeing to review the federal government’s controversial decision to shut down Drakes Bay Oyster Co. in the Point Reyes National Seashore north of San Francisco.
An appeal to the High Court is due to be filed soon by the Lunny family, owners of the 80-year-old oyster farm, after a 9th U.S. Circuit Court of Appeals panel ruled against them in their fight for survival against the U.S. Interior Department.
Residents of Northern California and beyond know the oyster farm as a regional treasure. Forty percent of oysters harvested in California come from Drakes Bay. Of its 30 longtime employees, a number live at the site with their families. Drakes Bay’s farm is a major recreational and educational resource, drawing tens of thousands of visitors each year to learn about sustainable marine agriculture and sample rich nutritious marine products. The farm’s operations have been praised over the years for an ethic of environmental sensitivity and harmony.
But it’s not just the future of this Bay Area institution that’s on the line. The Lunnys’ lawsuit asks fundamental questions about accountability in government, especially in the area of environmental policy. Should unelected regulators be permitted to operate in a vacuum, essentially as a law unto themselves, so their decisions are shielded from meaningful review by the courts, even when environmental quality could be compromised?
One of the most important federal environmental statutes — the National Environmental Policy Act, or NEPA — is designed to foster accountability. When a federal action would affect the environment, NEPA says the impacts must be carefully studied and reported to the public.
But the National Park Service did not comply with NEPA when it decided against extending the decades-old lease that has allowed the oyster farm to serve as one of the country’s primary providers of this sustainable and healthy food source.
Yes, the feds did produce a partial, deceptive, and self-serving report. It was so sloppy that no self-respecting environmentalist would let it stand in any other context. Sen. Dianne Feinstein slammed it as “flawed ... with false and misleading science.”
Now, regulators are claiming they didn’t have to do any analysis at all, let alone a comprehensive NEPA review, because they weren’t okaying a new land-use project, merely bringing an end to an existing one.
Surely that’s a distinction without a difference, because the environment can potentially be affected as much by closing down a facility or project as by starting one up. Still, the 9th Circuit panel — or at least the majority in the 2-1 decision — bought the government’s hair-splitting interpretation of NEPA. It reasoned that regulators can excuse themselves from providing a NEPA analysis or reporting to the public, merely by asserting that their decision to alter an existing land use is “good for the environment.”
The government’s stance in this dispute is sadly ironic. Drakes Bay oyster farm is integral to the agricultural heritage on which the National Seashore is founded, and for decades the feds partnered in preserving that heritage. Now, they’re furiously cutting corners as they abandon it.
Environmental organizations are also raising eyebrows by taking the government’s side. Friends of the environment don’t usually endorse government avoidance of environmental laws — especially “sunshine” mandates for openness.
A robust NEPA study would allow regulators and the public to know the full consequences of closing the oyster farm. For one thing, the underwater racks on which oysters are grown would have to be removed, requiring a barge-mounted generator and electric hoist that could disturb the sea bed and shoreline. Water quality could also permanently suffer from the loss of the shellfish that filter nitrogen and phosphorus from the estuary.
So now it’s up to the Supreme Court to decide whether NEPA will be enforced in a rigorous way. In supporting the Lunnys’ request that the court take the case, the property-rights-oriented Pacific Legal Foundation will argue in an amicus brief that agencies can’t exempt themselves from environmental review on their own say-so.
Transparency and honesty. That’s all that NEPA asks of bureaucrats, if correctly interpreted and applied. On matters such as the oyster farm’s future, the public deserves to know all the facts and implications, in the full light of day.
Tony Francois is an attorney with the Pacific Legal Foundation.