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On June 15, 2023, the United States Court of Appeals for the Fifth Circuit held that the State of Louisiana lacked standing to challenge the National Marine Fisheries Service (NMFS) Final Rule requiring certain shrimping vessels in Louisiana waters to use turtle excluder devices (TEDs). 

In December 2019, to protect endangered sea turtles, the NMFS promulgated a rule requiring a TED on all skimmer trawlers over 40 feet in length, including those operating in state waters.  This requirement was to go into effect on August 1, 2021. Shortly after the Final Rule’s effective date, Louisiana sued the NMFS under the Administrative Procedure Act, challenging the Final Rule as arbitrary and capricious. Louisiana argued that the TEDs were unnecessary in state waters and would economically harm its shrimp fisheries.

The District Court for the Eastern District of Louisiana preliminarily enjoined the enforcement of the Final Rule in Louisiana inshore waters until February 1, 2022, finding the state could sue in its quasi-sovereign capacity with its interest in and ownership of marine resources. The District Court noted that to withstand a motion for summary judgment, Louisiana would need to show a more concrete injury.

After the temporary injunction expired, Louisiana and the NMFS moved for summary judgment.  The NMFS argued, inter alia, that Louisiana lacked standing.  In its response to NMFS’s motion, Louisiana argued that it had standing based on:

  1. its interest in and ownership of marine resources;
  2. increased law enforcement costs;
  3. a reallocation of resources to enforce the Final Rule, which would undermine Louisiana’s ability to enforce its existing laws; and
  4. its parens patriae standing to vindicate the economic interests of the State.

The District Court granted the NMFS’s motion holding that Louisiana failed to provide sufficient evidence to support its alleged injuries, and dismissed Louisiana’s suit.

On appeal, the Fifth Circuit affirmed the District Court’s decision, agreeing that Louisiana failed to offer evidence to support its bases for standing.  Specifically, the State failed to show injury to its marine resources, injury to Louisiana’s shrimp harvests, economic injury to a substantial part of the state’s population, or an increase in enforcement costs.

The Fifth Circuit’s ruling reinforces that to challenge a federal agency rule, a state, like any other person, must establish more than a theoretical injury. With Louisiana’s case dismissed, the TED requirements for shrimp skimmer trawl vessels 40 feet and greater in length are likely to remain in place.

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