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Defenders of Wildlife v. Gutierrez

ELR Citation: 38 ELR 20181
Nos. No. 07-5278, (D.C. Cir., 07/18/2008)

The D.C. Circuit affirmed a lower court decision upholding NOAA-Fisheries' denial of an emergency rulemaking petition concerning the protection of the North Atlantic right whale, but remanded its dismissal of claims concerning the U.S. Coast Guard's failure to consider the impact of some of its actions on the whale. The petition, among other things, sought to reduce vessel speeds in and out of East Coast ports. The explanations presented in NOAA-Fisheries' denial represented reasoned decisionmaking. At the time of the denial of the petition, the agency was holding public meetings and preparing a draft environmental impact statement on proposed vessel speed restriction measures. And the petitioners presented no evidence to rebut the agency's prediction that an emergency rule would curtail the public's notice-and-comment period and analysis of the rule's environmental impact. As for claims against the Coast Guard, the petitioners have standing to challenge the Coast Guard's regulation of "traffic separation schemes." The Coast Guard's actions in setting traffic separation schemes also amount to final agency action for which the courts have subject matter jurisdiction. The court, therefore, remanded the petitioners' claims against the Coast Guard to the lower court.

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