There are a number of lawsuits in various states of play around the country with plaintiffs, typically kids fronting for environmental groups, demanding that a judge issue an injunction to curtail fossil fuels (or find energy companies liable for climate change damages), but a parallel case hit the wall at the DC Circuit Court of Appeals today.

In Maine Lobstermen’s Association v. National Marine Fisheries Service (NMFS), the court reviewed a proposed scheme of the NMFS to step up regulation of the lobster fishing industry under the authority of the Endangered Species Act in the northeast because lobster fishing was thought to be a growing threat to right whales.

But the NMFS was not able to attribute many deaths of right whales directly to lobster or crab fishing (maybe they should have a look at offshore wind power installations, except those are sacred as we know), and instead rested their case for increased regulation on extreme projections of possible future harms. The likelihood is that large areas of lobster habitat would be simply closed off to the lobster fishing industry (and yet likely remain available for wind power, of course).

And it is just here that the DC Circuit Court said No, by a 3 – 0 vote. It found the regulation to be both “arbitrary and capricious,” and not entitled to Chevron deference:

On the merits, we decide whether the Service must (or even may) indulge in worst-case scenarios and pick “pessimistic” values in order to give “the benefit of the doubt” to the species. . .

The Service argues that it complied with its interpretive rule because it picked the “conservative” outcome or the “worst-case scenario” only when there were “two or more reasonably likely outcomes,” but that is just not so. By the Service’s admission, it relied upon worst-case modeling that is “very likely” wrong, based upon assumptions the Service concededly does not believe are accurate. Projections that are “very likely” wrong are not reasonably certain to occur. The Service’s new approach was therefore a change in position. “Agencies are,” of course, “free to change their existing policies as long as they provide a reasoned explanation for the change.” Encino Motorcars, 579 U.S. at 221. In this case, though, the Service displayed no awareness of its own flip flop. This was “arbitrary and capricious,” and so the agency’s interpretation was “unlawful” and “receives no Chevron deference.” . . .

And here is the most direct smackdown:

Statutory text and structure do not authorize the Service to “generally select the value that would lead to conclusions of higher, rather than lower, risk to endangered or threatened species” whenever it faces a plausible range of values or competing analytical approaches. The statute is focused upon “likely” outcomes, not worst-case scenarios. It requires the Service to use the best available scientific data, not the most pessimistic.

This is highly relevant for the climate lawsuits, and other climate policymaking, because the lawsuits, and the Biden Administration’s climate calculations, all rely on the extreme “RCP8.5” scenario of future climate change than even the Intergovernmental Panel on Climate Change has admitted is unlikely. Given the climatista addiction to climate porn, they can’t help themselves, and keep referring to a parade of future horribles based on RCP8.5.

This case suggests that at least on appeal, these kind of claims may not find favor in the courtroom.