As this is being written, nearly a month after the 2020 election, the outcome of the election is not yet fully clear.
The Democrats have retained the House of Representatives. Although a few races remain in doubt, it’s clear that their majority in the 117th Congress will be significantly smaller than it was in the previous session.
Barring some unprecedented and probably unthinkable event, the Democrats have also captured the White House, with President-elect Biden standing by to take over on January 20, 2021.
Senate control, however, remains an open question, to be decided by two runoff elections in Georgia. If Democrats beat the odds and win both, the Senate will be split 50-50, giving the Democrats practical control, as now Vice President-elect Kamala Harris votes to break any tie. However, it is more likely that the Republicans will hold on to a slim 52-48 or 51-49 majority.
What might that mean for fisheries issues? Like the outcome of the election itself, that’s not completely clear.
At the administrative level, we’ll undoubtedly see a better fisheries management environment, as science, rather than special interests’ economic concerns, will drive most decisions. While politics will never be completely purged from the process, and some aspects of fisheries management will remain political endeavors, it’s very unlikely that the new administration will cavalierly override an Atlantic States Marine Fisheries Commission finding of non-compliance, as the current administration did in the case of summer flounder in 2017, or reopen a fishing season, knowing that overfishing would inevitably result, as it did with Gulf of Mexico red snapper in the same year.
It’s also likely that an incoming Biden administration will take a more fish-friendly view of broader environmental issues. President-elect Biden has already expressed his opposition to the controversial Pebble Mine in Alaska’s Bristol Bay watershed and could, conceivably, reverse recent executive orders that allowed commercial fishing in the New England Canyons and Seamounts Marine National Monument and sought to eliminate regulations that allegedly hold down fish landings. Under his administration, we will probably see better enforcement of Clean Water Act regulations, better protections for threatened and endangered fish, and more aggressive stewardship of anadromous species’ spawning and nursery grounds. President-elect Biden will also hire former Senator John Kerry to address climate change issues, which will undoubtedly include those impacting fish stocks.
At the legislative level, predictions are harder to make. Whether or not the Senate remains in Republican control, the fate of fisheries legislation may well turn on whether Congress returns to its traditional bipartisan approach to such issues. Given the partisan nature of so many congressional debates, it’s sometimes hard to remember that when the Sustainable Fisheries Act of 1996 (SFA), a bill that substantially amended and improved the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), was introduced in the 104th Congress by Senator Ted Stevens (R-AK), four Democrats and four Republicans chose to cosponsor the bill, which was then unanimously approved by that chamber, and passed 384-30 by the House.
That contrasts with the 2018 House vote on the Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act (H.R. 200), which sought to roll back some of the conservation measures included in the SFA, and so weaken the federal fisheries management system. The House approved that bill 222-193 on an essentially party line vote, that saw only 15 Republicans oppose the bill, while 9 Democrats voted in favor.
If such partisanship prevails in the 117th Congress, it will be more difficult for fisheries legislation to progress. However, there is probably some reason for hope.
House passage of H.R. 200 was driven, in large part, by many Republican representatives’ belief that industry, including the fishing industry, suffers from overregulation; since Republicans lost control of the House in the 2018 election, deregulation proponents no longer hold enough power to determine the outcome of a vote. While there is a good chance that the Republicans will retain control of the Senate, that chamber has historically taken a more thoughtful approach to fisheries legislation; H.R. 200 languished there after House passage. Such approach is unlikely to change after the most recent election.
In addition, senators from states with large fishing industries, whether Democrats or Republicans, are likely to place the interests of their constituents ahead of any philosophical concerns they might harbor about government overreach or the growth of the administrative state.
Thus, while no one should expect to see a 1996-like level of bipartisan cooperation on ocean issues, it is reasonable to hope that sponsors of needed fisheries legislation will be able to build enough support from both sides of the aisle to see such legislation passed.
What oceans bills will be introduced in the 117th Congress? While it’s impossible to predict everything that might come up over the next two years, there are a few pieces of legislation that Congress is almost certain to consider.
One is a Magnuson-Stevens reauthorization bill.
Since the Fishery Conservation and Management Act of 1976, which has since evolved into Magnuson-Stevens, was introduced, the law has been reauthorized about once each decade. The last such reauthorization occurred in 2006, so another is arguably overdue. Rep. Jared Huffman (D-CA), Chair of the House Natural Resources Subcommittee on Water, Oceans and Wildlife, has been holding a “nationwide listening tour,” during which a broad array of stakeholders interested in fisheries and marine issues have been asked to provide their views on needed changes to Magnuson-Stevens.
Stakeholders’ comments to Rep. Huffman have been varied. While some fishermen complained about “overly precautionary” management and sought to reduce restrictions on fishing activities, most stakeholders praised Magnuson-Stevens’ conservation and management provisions. Many suggested that any amendments should provide greater protections for forage fish and provide a greater emphasis on ecosystem-based management approaches. Others spoke about the need for improved fisheries data, particularly with respect to recreational fisheries, and the need to consider the impacts of climate change on recreational and commercial fisheries.
The nature of the comments suggested that any proposed changes to Magnuson-Stevens are likely to be evolutionary, taking few significant departures from the existing law while further enhancing its ability to conserve and manage fish stocks, rather than revolutionary changes to the current statute’s language and intent. It is likely that the first draft of a reauthorization bill will be released early in the next congressional session.
Climate change, and its impacts on the ocean, will be another hot issue in the 117th Congress.
On October 20, 2020, Rep. Raul Grijalva (D-AZ), Chairman of the House Natural Resources Committee, introduced the Ocean-Based Climate Solutions Act of 2020 (H.R. 8632), which addressed a number of climate-related ocean issues, including carbon sequestration, marine protected areas, a prohibition on offshore oil and gas leasing, offshore renewable energy development, climate-related fisheries topics, barrier beach management, various coastal zone management and insular affairs issues, marine mammal conservation, coastal resiliency and the resiliency of coastal indigenous peoples, ocean acidification, harmful algae blooms, marine research, coastal wetlands protections, and related matters.
Although hearings were held on H.R. 8632 and other ocean-related bills on November 17, 2020, the bill is so large that there is no chance that it will be given serious consideration in the current lame duck session of Congress. However, given that it has already attracted the support of public support, there is little doubt that legislation resembling H.R. 8632 will be reintroduced in the 117th Congress. Yet, as parts of the current bill, particularly those titles which would create a large network of marine protected areas and prohibit additional offshore oil and gas leasing, have drawn substantial opposition, H.R. 8632 may prove to be the biggest single test of members’ willingness to work in a bipartisan fashion to craft a compromise that is reasonably acceptable to everyone.
The other issue that is almost certain to generate legislation in the 117th Congress is offshore aquaculture. Currently, neither the National Marine Fisheries Service nor any other federal administrative agency has the authority to regulate and license aquaculture facilities in waters between 3 and 200 miles from shore, a fact that was confirmed by the United States Court of Appeals for the Fifth Circuit on August 4, 2020. However, both private companies and some federal legislators are eager to see such facilities developed off the U.S. coast.
In order to grant the National Oceanic and Atmospheric Administration regulatory authority over offshore aquaculture, legislators have introduced the Advancing the Quality and Understanding of American Aquaculture Act (AQUAA Act) in both the 115th and 116th sessions of Congress. Although the language of the AQUAA Act versions introduced in the two sessions differed somewhat, the intent of the bill was the same, and a third version is very likely to be introduced fairly soon after the new session convenes.
Legislation besides the bills described above will probably be introduced to deal with other, yet unidentified, marine and fisheries issues.
Whether any ocean-related bills pass will depend, in large part, on whether legislators from both parties, and from both houses of Congress, are willing to sit down together and work to further the public’s interest in a healthy and abundant ocean.
They have been willing to do so before. There is hope, but no certainty, that they will be willing to do so once the 117th Congress convenes.