NEW ORLEANS (AP) — The potential environmental and economic consequences posed by proposals for fish farming in federal waters dictate that Congress — not a federal agency — must decide how to regulate the industry, an attorney told a federal appeals court Monday.
At issue before the 5th U.S. Circuit Court of Appeals was a September 2018 ruling by a federal judge who threw out National Oceanic and Atmospheric Administration's rules for fish farms in the Gulf of Mexico, saying Congress never gave the agency authority to make them.
An attorney for groups representing commercial and recreational fishing interests, food safety advocates and conservationists urged the three-judge appellate panel to uphold the 2018 ruling. Those groups cite numerous worries about the effect of fish farming on market prices for wild-caught fish and the effects on fishing communities, the environmental consequences of the use of antibiotics to control disease, the unpredictable genetic effects on wild, native fish stocks if farmed fish escape from farm pens and other concerns.
NOAA maintains that fish farming, including that on the open sea, is vital to future seafood production and can help provide year-round jobs while rebuilding protected species and habitats.
A three-judge appellate panel closely questioned NOAA attorney Frederick Turner on whether current fisheries law enables the agency to develop regulations — and about past failures by Congress to pass legislation addressing the issue.
“Why would we step in and say you get what Congress hasn't given you?” Judge Stephen Higginson asked Turner at one point.
Turner argued that the existing law is broad and gives NOAA's National Marine Fisheries Service the authority to permit and regulate fish farming, not just the taking of wild-caught fish.
The appellate panel is expected to rule later this year.
Attorney George Kimbrell, speaking for a variety of groups who say Congress must act first, said after the hearing that NOAA may indeed be the right agency to permit and regulate federal water aquaculture, but not until Congress addresses the issue and passes a law.
“Don’t shoehorn it into a law that was never intended for that purpose and whose metrics just don’t match,” Kimbrell said.