RICHMOND, Va. (CN) — A Fourth Circuit panel heard arguments Tuesday over whether dead fish dumped back into the water by shrimping boats counts as pollution under the Clean Water Act.
“You never know what you’re going to pull up fishing,” attorney Brian David Schmalzbach of McGuireWoods, who argued on behalf of shrimp fisheries, told the three-judge panel.
This statement is especially true for his clients who are captains of trawlers, large ships designed to drag nets along the ocean floor to capture each day's catch.
Trawlers drag these nets, teeming with sea life, to the surface. But they are usually only looking for certain species and the unwanted creatures are thrown back, dead or alive.
“This is a case about the Clean Water Act, about the discharge of pollutants into the waters of the United States. And, your honors, contrary to the briefing from the appellees, this is right down the middle of the barrel of the Clean Water Act,” said attorney James L. Conner of Calhoun Bhella & Sechrest, who represents the North Carolina Coastal Fisheries Reform Group, at Tuesday's hearing.
Conner and the environmental group members, some of whom are also boat captains, claim in a federal lawsuit filed in 2020 that the large quantities of dead fish thrown into the water by large-scale shrimping vessels constitutes pollutants.
He asked the three-judge-panel to reconsider a district court decision out of Greenville, North Carolina, that dismissed the case in a win for the shrimp businesses.
“This is not an aberration, this is not stretching the [Clean Water] Act in any way,” Conner said.
The CWA prohibits unpermitted discharges of dredged materials, including biological material. The fisheries reform group claims the practice of throwing dead bycatch back in navigable waters violates the decades-old law because it is considered pollution.
U.S. District Judge Louise Flanagan, a George W. Bush appointee, ruled last year that throwing live or dead bycatch back into coastal waters does not rise to the level of an unpermitted discharge of biological materials.
Now the case is in the hands of a Fourth Circuit panel composed entirely of judges appointed by former president Donald Trump: U.S. Circuit Judges Julius Richardson and Allison Jones Rushing and U.S. District Judge Sherri Lydon, sitting by designation from the District of South Carolina.
Conner explained to the panel why his clients took the bycatch issue to court and why the Environmental Protection Agency hasn’t pursued the issue.
“They are a small agency. If we look at their percentage of the federal budget, it’s tiny. They have a lot on their plate, lots of different laws and they routinely miss things like this,” he said.
That, he said, often leaves legal action against possible polluters up to groups like his client.
Rushing sought clarification from Conner about his position.
“I think below the argument was that bycatch includes live fish and dead fish, that both of those are pollutants. On appeal, your brief seemed to mostly focus on dead fish and I wanted to clarify if your argument’s been refined or you’re just focusing on that because it is just one example," the judge said. "Are you still arguing that putting live fish back in the water is a pollutant?”
Conner began to respond, but Rushing interjected with a follow-up question.
“You’re not arguing that live fish are a biological material? Only dead fish are a biological material?” she asked.
He responded that his clients “are only arguing that the discharge of dead fish into the waters of the United States is a violation of the Clean Water Act.”
But Rushing was not satisfied.
“How do I make that decision? It seems like such a broad term,” she said.
“That's a good point,” Conner responded. “We certainly know that live fish in some instances have been found to be biological materials and, honestly, we’d be perfectly happy with a decision from this court that said both dead and alive.”
Conner said his argument focuses on dead fish because “live fish don’t pollute the water in a common sense kind of way.”
“What we’re asking this court to specifically rule is...that the discharge of thousands of tons of dead fish into our waters, specifically the Pamlico Sound, is a violation of the Clean Water Act,” he said, referring to a North Carolina lagoon.
Adding to Rushing’s line of questioning, Richardson asked whether his 9-year-old daughter could be in trouble with the EPA for skipping a rock in the ocean. After all, rocks are included in the CWA’s list of pollutants.
“I have a hard time understanding that, because you begin by saying that the word pollutant is defined in the statute to mean a whole list of things, including rocks and heat and biological material," the judge said. "What I’m having a little bit of a hard time understanding is what about killing a fish moves it from nonbiological material to biological material. It strikes me that it's biological material when it's alive and it's biological material when dead if I apply the natural understanding of that phrase in isolation."
Conner frankly admitted he was not expecting this line of questioning.
"These laws are broadly worded, and they include rocks and sand. If a kid’s standing on the shore and throwing a rock in the water, is somebody going to swoop in from EPA and snatch him up and make him get a permit? No,” the attorney said.
The panel expressed concern and skepticism about the level of discretion the EPA has under the CWA when it comes to deciding what pollution entails.
“Congress does not hide whales in fishbowls,” Schmalzbach argued after his opposing counsel was cut off for time. “So the district court was right that by including biological materials in a list of pollutants, Congress did not regulate bycatch under the Clean Water Act. And Congress did not thus outlaw the shrimping and fishing industries in which bycatch is inevitable."
The fisheries' attorney asked the panel to affirm the lower court's dismissal.
“There have been decades of EPA silence, 50 years where the EPA has not sought to regulate bycatch, has not sought to regulate fisheries management,” Schmalzbach said, adding that ruling in the environmental group's favor would unduly harm the fishing and shrimping industries.
The judges did not indicate when they would issue a ruling.
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