Posted on December 7, 2023 by Jerry Reid
“We’re gonna win so much, you may even get tired of winning. And you’ll say, ‘Please, please. It’s too much winning. We can’t take it anymore.’” That was what then-candidate Trump promised life would be like in America during his presidency. Regardless of how much winning you believe actually took place in those years, winning too much can happen, and particularly in environmental litigation it can lead to unintended consequences.
Early in my career in Maine’s Attorney General’s Office, I worked on what should have been a routine land use case. It involved a small-town lawyer and businessman who operated a lakefront campground, built numerous cabins within the shoreland zone, and refused to relocate them to comply with the setback requirement. The statute had a mandatory minimum penalty provision of $100 per day for violations, which usually made it easy to settle such cases. Not so here. At trial the defendant angered the judge, who happily found he had no discretion but to apply the mandatory penalty to each cabin for each day of violation, for a grand total of $8.7 million. This courtroom victory quickly became a political headache. A bill was soon introduced in the legislature to gut the state’s enforcement authority on the grounds that it produced absurd results. We settled the case on appeal to help defeat the bill, but all of this was a learning moment for a young lawyer.
Winning more in court than policymakers can bear isn’t new. It famously played out in TVA v. Hill, although both the Endangered Species Act (“ESA”) and the Snail Darter managed to survive that showdown. And it happened again recently in litigation over restrictions on Maine’s lobster industry designed to protect the North Atlantic right whale. Following a spate of whale deaths – some caused by fishing gear entanglements – the National Marine Fisheries Service (“NMFS”) issued an ESA biological opinion (“BiOP”) and four-phase “Conservation Framework” designed to eliminate whale entanglements by 2030. Conservationists sued, arguing that the BiOP did not comply with the ESA and Marine Mammal Protection Act (“MMPA”), and that the first phase of the Framework was insufficiently protective. The conservationists won big in district court, which remanded the matter to NMFS, which in turn announced it would dramatically accelerate implementation of its Framework.
The politically influential lobster industry had strongly objected to the Framework in its original form and now became fully enraged and mobilized. They saw the impending regulations as crushing the fishery and Maine’s coastal economy. Senators Collins and King agreed and immediately had the then-pending federal budget bill amended to include language that deems compliance with Phase 1 of the Framework to be full compliance with the ESA and MMPA through 2028, upending the district court decision.
None of this is to second-guess actors in the right whale litigation. This is tough stuff. The whales are critically endangered and entanglements are horrible. NMFS lacks the data it needs to make fully informed decisions, but was required by law to act. There has never been a confirmed right whale serious injury linked to Maine lobster gear, yet proposed restrictions would have had dramatic social and economic impacts on coastal communities. The point here is only to observe again that big courtroom wins may have unintended consequences, and may not hold up if they aren’t backed by enough public support.
Disclosure: Jerry Reid is Chief Counsel to Maine Governor Janet T. Mills, whose Department of Marine Resources was an intervenor in the district court decision discussed above. The opinions expressed are his own.