Last week the U.S. Court of Appeals for the District of Columbia Circuit issued a decision in Defenders of Wildlife v. Gutierrez. This case arose out of the National Marine Fisheries Service 2005 denial of Defenders of Wildlife's and other environmental groups' Petition for Initiation of Emergency Rulemaking to Prevent the Extinction of the North Atlantic Right Whale as well as the Coast Guard's alleged Endangered Species Act violations for failure to consult with NMFS about the potential effect of any Atlantic Ocean traffic separation schemes on the right whale.
The D.C. Circuit first upheld the district court's rejection of the challenge to NMFS's denial of the rulemaking petition. Citing to Circuit precedent, the Court determined that the review of the NMFS denial should be limited in scope:"'[A]n agency's refusal to institute rulemaking proceedings is at the high end of the range' of levels of deference we give to agency action under our 'arbitrary and capricious' review." This is an interesting point, as there appear to be few, if any, cases holding that ESA petition denials are subject to heightened deference.
The second point of interest is that, contrary to the lower court decision, the D.C. Circuit held the Coast Guard's failure to engage in ESA section 7 consultations to be final agency action and thus subject to judicial review. This means that the district court will have to district court will have to address whether the Coast Guard in fact violated section 7's requirement that federal agencies must consult with NMFS in order to "insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species."