Aug 152023

Fourth Circuit Applies Major Question in Shrimping Clean Water Act Case

Samuel B. Boxerman and Aaron L. Flyer
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On Monday, the U.S. Court of Appeals for the Fourth Circuit affirmed a ruling by the U.S. District Court for the District of South Carolina finding that shrimping trawlers that disturb ocean floor sediment and discard other fish and marine organisms, or “bycatch,” after extracting shrimp from their nets are not discharging a pollutant under the Clean Water Act (Act). In so doing, the court made clear that neither discarding bycatch nor kicking up sediment already on the ocean floor constitutes the discharge of a pollutant or dredge or fill material that would otherwise require a permit by the Act.

The case, brought under the Act’s citizen suit provision by Fisheries Reform Group (Group), sought to change the way commercial shrimpers conduct trawling activities. While the court found that the Group’s literal construction of the Act’s definition of “discharge of a pollutant” was plausible when viewed in isolation, the court invoked the major questions doctrine — recently used in the Supreme Court’s West Virginia v. EPA ruling overturning Environmental Protection Act (EPA) legacy Clean Power Plan, analyzed in a post here — to further evaluate the legal interests and economic and political significance at play. Here, the court identified certain factors that, under the major questions doctrine, require the Group’s interpretation to not just be plausible under the Act but instead be supported by clear congressional authorization. Notably, the court found that nothing in the Act’s legislative history and structure suggested EPA could use the Act to regulate fishing in this way and that doing so would upset the existing legal framework that gives states primacy on such regulation. Adopting the Group’s interpretation would have an enormous impact on recreational and commercial fishing industries and, according to the court, could not be upheld without clear congressional authorization. As more courts adopt the major questions framework most recently used in West Virginia, attempts by federal agencies to extend existing regulatory powers to new issues may face similar challenges.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.

Samuel B. Boxerman

Washington, D.C.

sboxerman@sidley.com

Aaron L. Flyer

Washington, D.C.

aflyer@sidley.com

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