Will the Rigs-to-Reefs Experiment Be Based on the “Best Scientific Information Available”?

Artificial reefs constructed from decommissioned oil rigs have been proposed as a tool to counteract declines in marine fish populations. There is so much uncertainty surrounding this relatively new proposition to deal with an inherently difficult-to-study problem, however, that it is not yet possible to tell whether these rigs-to-reefs will contribute to the recovery of fish populations or exacerbate the problem. The National Fishing Enhancement Act (NFEA), the statute authorizing the rigs-to-reefs program, requires that agencies implementing it base their decisions on the “best scientific information available” (BSIA). Although no court has yet addressed this provision in the NFEA, it has been the frequent subject of litigation in related statutes. This Comment explores how a Court would likely evaluate a challenge to agency action under the NFEA, based on comparisons to treatment of this provision under the Endangered Species Act (ESA), Marine Mammal Protection Act (MMPA), and Magnuson-Stevens Fishery Conservation and Management Act (MSA). Concluding that courts will not likely supply the pressure to advance scientific information about the effects of rigs-to-reefs, this Comment advocates for a targeted approach to closing the information gap.