By: Amanda Nichols, Ocean and Coastal Law Fellow, National Sea Grant Law Center

On Friday, March 2nd, the Washington Senate voted in favor of H.B. 2957—a bill that seeks to phase out nonnative marine finfish aquaculture in the state’s waters. H.B. 2957 passed in the House on February 14th. The bill would end state leases and permits for operations that grow nonnative finfish in state waters when all current leases expire in 2022. If Washington’s current Governor, Jay Inslee, approves of the legislation as expected, he will soon sign the bill into law.

This legislative action seemingly culminates action the state has taken against Atlantic salmon farmers after the mass breakout last year from Cooke Aquaculture’s Cypress Island facility. Cooke currently has several active leases in the state, but had its Cypress Island lease permanently terminated after an investigation uncovered wrongdoing leading up to and in the aftermath of the escape. Joel Richardson, vice president of Cooke, has stated that the company is deeply disappointed with the bill’s passage and its potential impact on the industry and rural workers. Other critics of the bill condemn it as overly reactionary, unnecessary, and distinctly anti-industry. The Senate rejected all introduced amendments to the bill, including a proposal to only allow growth of single-sex Atlantic salmon as well as a tax incentive package to help industry transition to other operations.

However, Washington’s move may soon garner legal retaliation from Cooke. Before the legislature’s final vote, Cooke publically warned that if the ban were approved, it would resort to arbitration under Chapter 11 of the North American Free Trade Agreement (NAFTA) to recover its lost investments in the state. Chapter 11 allows corporations or individuals to sue Mexico, Canada, or the United States for compensation when actions taken by those governments violate international law. Cooke is a foreign corporation based in New Brunswick, Canada. Before H.B. 2957’s passage, Cooke noted that the lack of fair and equitable treatment as well as attempted confiscation of Cooke’s $76 million investment in Washington would amount to economic protectionism against Cooke as a foreign company. Cooke’s representatives allege that because the bill applies only to nonnative marine finfish aquaculture, it is targeting Cooke’s farms in all but name (as each of Cooke’s Washington facilities farm Atlantic salmon). Cooke’s attorneys allege this would constitute inferior treatment against a foreign company than that experienced by its domestic counterparts—a violation of NAFTA. Cooke’s representatives note that the difference in how Cooke is being treated is legally significant considering the other, larger fish escapes from domestically-owned aquaculture sites that have occurred in previous years, prior to Cooke’s fish escape. The corporation maintains that the only difference between these incidents is its status as a foreign investor.

Cooke claims that H.B. 2957 constitutes a disproportional response to the actual impact of its August incident, as Washington’s own Department of Fish and Wildlife has consistently reported that the escaped fish from Cypress Island carried no pathogens and were not able to survive in the wild, or compete or interbreed with wild salmon. However, advocates of the bill allege the fish farms pose significant environmental and socioeconomic risks as well as threaten already struggling native salmon populations. While this scientific debate is not likely to be resolved any time soon, Cooke will have to wait and see if NAFTA can serve as its saving grace after the bill is likely signed into law.