Government Inefficiencies: Are Fish Farms Fishing or Farming?

There is heightened interest in the inefficiencies of the executive branch of the federal government. Today, I unravel some of these inefficiencies using a recent fish farm example. 

U.S. Court of Appeals, 5th Circuit, 2020: “Harvesting,”  we  are  told,  implies  gathering  crops,  and  in  aquaculture  the  fish  are  the  crop.  That  is  a  slippery  basis  for  empowering  an  agency  to  create  an  entire  industry  the  statute does not even mention. We will not bite” 

 

Natural predator guards a tilapia fish farm in Lake Victoria, Uganda

The Problem

There is heightened interest in the inefficiencies of the executive branch of the federal government. All organizations—whether private, governmental, or non-profit—must engage in continuous optimization to stay effective. They may achieve this through internal reforms, external consultants, or external pressures like shareholders, owners, or taxpayers.

However, the executive branch is not a typical organization. It is an extraordinarily complex conglomeration of entities, and in my opinion, it is far more intricate than corporate governance. This complexity arises not only from its size and scope but also from the unique constraints imposed by the U.S. Constitution, legislative processes, and the separation of powers.

This blog post is the first in a series designed to unpack the complexities of the federal government, particularly for readers who may not be familiar with how it operates—or, at times, doesn’t operate. So, grab your coffee, and let’s dive into the intricate world of federal governance.

Disclaimer: the views expressed in this post are solely my own, published under my first amendment rights. The views expressed do not necessarily reflect the views of the United States Government or any of its federal agencies.

The Scenario

Imagine you are an investor in a seafood company that wants to start an off-shore fish farm in the U.S. based on your success in Asia and Europe. There is substantial growth potential as the U.S. lags way behind in global production (16th according to a 2024 U.N. report). President Trump’s May 2020 Executive Order sparked new interest in aquaculture because it underscored the economic, environmental, and strategic benefits of expanding this industry.  

The ocean is basically public “land” with split jurisdiction: states control the first 3 miles while the federal government controls the rest of the 12-mile territorial sea. If your fish farm was planned 6 miles off-shore, it would fall under federal jurisdiction. This means your company will need a federal lease and multiple permits to operate—similar to the requirements for pipelines, grazing cattle, or wilderness camps on federal lands.

But which agencies are responsible for issuing the lease and approving permits?  

Government Attempts to Clarify Responsibility

In the early 2000s, the National Marine Fisheries Service (Fisheries Service), part of the federal executive branch, began developing plans to regulate aquaculture in the Gulf of Mexico. They finalized regulations in 2016 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Fishery Act).

Fishermen and food safety advocates sued and the federal district court sided against the executive branch. In their 2018 decision, the judge rejected the agency’s plan and reminded us that an agency cannot act if Congress does not “explicitly or implicitly delegated authority to an agency”. 

The Court also elaborated on the definition of the term “harvesting”, arguing that aquaculture is not fishing and rejecting the Fisheries Service’s reliance on the Fishery Act. The executive branch appealed but the Court of Appeals did not give traditional deference to the Fisheries Service. In fact, the panel of three judges seemed to have fun in their August 2020 decision, delving further into the definition of harvesting, while relying on fishy puns that would make my teenagers roll their eyes:

“Harvesting,”  we  are  told,  implies  gathering  crops,  and  in  aquaculture  the  fish  are  the  crop.  That  is  a  slippery  basis  for  empowering  an  agency  to  create  an  entire  industry  the  statute does not even mention. We will not bite. If anyone is to expand the forty-year-old Magnuson-Stevens Act to reach aquaculture for the first time, it must be Congress…

The judges also mocked the executive branch’s attempt to seduce them, criticizing repeated attempts of agencies to take power when Congress doesn’t explicitly give it:

Instead of identifying any intent to delegate authority here, the agency can claim only that Congress did not withhold the power the agency now wishes to wield. Once again, this is the argument that presumes power given if not excluded. We have resisted that siren song before, see Texas, 809 F.3d at 186, and we again decline to be seduced.

What Do I Think?

The executive branch failed to use an interpretation of the Fishery Act to fill a public need. Next they tried an executive order that has actually survived two different administrations. 

In May 2020, President Trump issued Executive Order 13921 with the following purpose:

By removing outdated and unnecessarily burdensome regulations; … improving the transparency and efficiency of environmental reviews; and renewing our focus on long-term strategic planning to facilitate aquaculture projects, we can protect our aquatic environments; revitalize our Nation's seafood industry; get more Americans back to work; and put healthy, safe food on our families' tables.
 
The Order attempted to create a much needed regulatory regime for aquaculture. I believe in what Supreme Court Justice Gorsuch defines as a “politically accountable and energetic executive” (2019), the executive branch was simply trying to address a public and investor need. 

The Order also designated the National Oceanic and Atmospheric Administration (NOAA) the lead federal agency for planning off-shore aquaculture projects and tasked the U.S. Army Corps of Engineers (Corps) with developing a permit process for aquaculture activities. This appeared to make sense since the Fisheries Service is part of NOAA. The Corps regulates activities in navigable waters under the Rivers and Harbors Act and also manages the Clean Water Act which regulates things that affect water quality. 

In essence, the executive was simply trying to use existing laws to fill a public need for aquaculture, investments, and food security. The Biden Administration did not revoke this order. But there were too many obstacles to this plan:

  • The Courts were already rejecting the executive’s reliance on the Fishery Act for aquaculture. Yet, the Executive Order tried to rely on the same law. 
  • The Executive Order identified the Fisheries Service as the Lead Agency for planning and environmental review. They developed a Draft Programmatic Environmental Impact Statement (DPEIS) in November 2024 noting that “the intent of this DPEIS is to support long-term planning for offshore aquaculture in the Gulf.” However, they cautioned that the identification of aquaculture planning areas “does not authorize or permit any specific aquaculture-related activities or individual aquaculture operations.” The Fisheries Service did not overstep its authority and refrained from identifying which federal entity was responsible for permitting.
  • As required by the Executive Order, the Corps drafted and issued an aquaculture permit (Nationwide Permit 56) in March 2021. The Corps was also very careful not to overstep their authorities. They did not include the aquaculture operations in their permit, only of the aquaculture infrastructure. Their own accompanying mandatory environmental impact analysis also focused only on the infrastructure.
  • In September 2024, environmental groups and tribes won their District Court case against the Corps challenging the aquaculture nationwide permit. The Court concluded that the Corps, in developing Nationwide Permit 56, failed to assess the impact of the operations of an aquaculture facility. But remember that the Corps had purposely not taken that responsibility as it was outside of their statutory authority.
So who do you lease federal ocean space from for your fish farm? And who do you get operational permits from? 

The U.S. federal government is extremely complicated. It is not a corporate organization or foundation in which the President, despite perception, can easily respond to public need by mandating changes. Our balance of power between the executive, legislative, and judiciary is extremely sensitive. After all, it has been fine-tuned over 230+ years. Supreme Court Justice Neil Gorsuch explains this separation well in his 2019 book. He dives into several other failed examples where either the judiciary or the executive has tried to fill a Legislative gap. 

Our governance structure is also very different from that of countries in Asia and Europe; the power of our executive to implement far-reaching, long-term change, is extremely limited without Congress. 

For these reasons, I believe that the 2020 Executive Order, which promised sweeping and much needed planning and governance for aquaculture, has failed to achieve its goals. 

Why Should You Care:

First, when a president issues a new executive order, read it carefully and understand its strengths as well as limitations given the specific wording. Don’t blindly accept the media’s interpretation. Second, remember that these orders cannot fill legislative gaps, nor can they withstand the true test of time and litigation. They are also easily rolled back and repealed as new presidents tend to do.

Executive orders could offer hope to some for a particular outcome. I personally fell for the allure of the power of an executive order in 2021—President Biden’s Executive Order on Climate Change that included an emphasis on wind farms. I invested in stock in wind turbines without thinking of future objections from environmental groups, wealthy land-owners, Tribes, fishermen, and special interests. I wish I had envisioned this AP article or Rechargenews October 2024 article on wind farm obstacles before buying the few stocks. 

My purchase of a few stocks is insignificant within the larger economic environment. But perhaps your innovative venture capital idea, such as aquaculture, off-shore wind, or drone taxis, is significant. Perhaps it could simultaneously fill a huge gap, help advance society, and make a lot of money. But carefully consider the inherent federal bureaucratic and legislative obstacles to innovations. 

Lastly, appreciate the complexities that those working in the federal government must grapple with. They must give priority towards the Constitution, laws, and Courts over societal and economic interests. 

If you get to the end of this article, please provide some feedback for future articles in this series. Your feedback could be a question (why are there so many federal employees, why is the federal government so inefficient, etc.) or a quote that you want me to respond to. 

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