Oceana is challenging the Trump Administration’s withdrawal of a proposed Obama-era rule that would have limited the number of protected marine animals that could be “incidentally captured” by drift gillnets. Oceana, a non-profit ocean conservation and advocacy organization, filed a lawsuit in the U.S. District Court in Los Angeles on July 12 against the U.S. Secretary of Commerce Wilbur Ross, the National Oceanic and Atmospheric Administration (NOAA), and the National Marine Fisheries Service (NMFS).

In 2015, the Pacific Fishery Management Council introduced a proposal for hard caps, or limits, on the number of injuries or deaths of nine protected species allowed during a rolling two-year or four-year period.

The Obama Administration published a proposal of how to implement the caps in October 2016 that would temporarily close a thresher shark and swordfish drift gillnet fishery in California if that fishery reached the cap. According to NOAA, gillnets are walls of netting with holes that fish can fit their heads through, but not the rest of their bodies. When the animal tries to back out, their gills get caught on the net. The more the animal struggles to free itself, the more it becomes entangled in the netting.

In addition to the swordfish that are intentionally being fished off the coast of California, the nets also accidentally trap marine animals that are considered “protected species.” The regulation would have protected fin, humpback, and sperm whales; leatherback, loggerhead, olive ridley, and green sea turtles; short-fin pilot whales; and bottlenose dolphins. However, the Trump Administration withdrew the proposal in June after the NMFS decided that the proposed changes “are not warranted at this time.”

Oceana released a statement on July 13 regarding the lawsuit. It said the proposed rule would have been an opportunity for the fishery to reduce “bycatch,” or species being caught inadvertently, and adopt “cleaner fishing methods” such as deep-set buoy gear or harpoon gear. Oceana attorney Mariel Combs said in the statement that “the withdrawal of this important protection … is plainly illegal.”

“Drift gillnets are a dirty and unsustainable way to catch swordfish,” Combs said. “Incremental steps, like limits on bycatch, are important tools to help move toward cleaner fishing. The Fisheries Service has supported these measures in the past, and its change of course is both disappointing and illegal.”

This isn’t the first time the Trump Administration has reversed some of the Obama Administration’s environmental decisions. In June, six environmental conservation groups sued the Environmental Protection Agency for suspending Obama-era regulations that limited leaks of harmful toxins during oil and gas production.

Marcus Dieterle

Marcus is an editorial intern at Law Street. He is a rising senior at Towson University where he is double majoring in mass communication (with a concentration in journalism and new media) and political science. When he isn’t in the newsroom, you can probably find him reading on the train, practicing his Portuguese, or eating too much pasta. Contact Marcus at Staff@LawStreetMedia.com.

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The Trump Administration is proposing to allow seismic air guns to survey oil and gas deposits along the U.S. Atlantic coast, but some environmentalists are concerned that the surveys could harm marine mammals.

Seismic air gun surveys use ships that tow seismic air guns. The guns are used to shoot compressed air through the water and into the seabed. That blast reflects back information about oil and gas deposits below the seabed, according to Oceana, an international advocacy organization focused on ocean conservation. The guns shoot compressed air every 10 to 12 seconds, said Ingrid Beidron, a marine scientist and campaign manager at Oceana.

The use of seismic air guns has a controversial history due to its impact on the environment. The Associated Press reported that the United States has not conducted any seismic air gun surveys in the mid- and south-Atlantic regions for at least 30 years. In January, the Obama Administration denied six energy companies’ applications for permits to conduct air gun seismic surveys in those regions. In May, under the Trump Administration, the Department of the Interior began reviewing those same six applications.

Most recently, the National Oceanic and Atmospheric Administration took action on those applications by releasing a proposal by the National Marine Fisheries Service on June 6 outlining the details of the plan as it seeks permits for the use of five seismic air gun surveys that could incidentally harass marine mammals.

The proposal includes measures to minimize harm to marine mammals such as prescribing a standard exclusion zone and, under some circumstances, shutting down the acoustic source so as not to disturb marine mammals. However, many environmental organizations, local governments, and businesses remain opposed to seismic air gun surveys.

Michael Jasny, director of marine mammal protection for the Natural Resources Defense Council, wrote in a blog post that some of the potential negative effects of the surveys could include causing marine animals to abandon their habitats, preventing animals from feeding regularly, obstructing animals’ communication, and injuring and killing fish and invertebrates.

The Endangered Species Act prohibits the “take”–or harassment, harming, pursuit, hunting, shooting, wounding, killing, trapping, capture or collection–of species listed as “endangered” or “threatened. However, a 1982 amendment to the Act allowed for taking that is “incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.”

The proposal in question lists five energy companies’ seismic operations, each spanning a range of days. The shortest operation would be 70 days; the longest, 308. According to the proposal, the seismic operations would generally occur within 200 nautical miles of the coast between Delaware and Cape Canaveral, Florida, with some additional activity up to 350 nautical miles from the shore. The operations would typically occur 24 hours per day.

Jasny called the surveys “an environmentally assaultive activity” that will open the east coast to offshore oil drilling. Over 120 East Coast communities, over 1,200 elected officials, over 41,000 businesses, and over 500,000 fishing families have opposed seismic air gun surveys and/or offshore drilling, according to Oceana.

If the NMFS finds that the taking will have a “negligible impact on the species or stock(s)” and “will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence users,” an incidental harassment authorization will be granted. Individuals can comment on the proposal until July 6, exactly 30 days after the date on which the proposal was released, by contacting Jolie Harrision at the NMFS.

Marcus Dieterle

Marcus is an editorial intern at Law Street. He is a rising senior at Towson University where he is double majoring in mass communication (with a concentration in journalism and new media) and political science. When he isn’t in the newsroom, you can probably find him reading on the train, practicing his Portuguese, or eating too much pasta. Contact Marcus at Staff@LawStreetMedia.com.

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The Endangered Species Act (ESA) was created more than 40 years ago and is considered by many to be an overwhelming success. Rarely has legislation ever remained in its original state over several decades; however, in its long history, the ESA has only been amended four times (1978, 1982, 1988, and 2004), with the most substantial amendments occurring in 1978. Despite many political attempts to reform the act, it seems to be largely shielded from modifications.

Under a new administration, however, efforts to delist a particular species or otherwise weaken the standing law have gained significant strength. Despite the efficacy of the act, concerns over burdensome regulations and negative impacts on private property rights have many concerned that the ESA is not as streamlined as it needs to be. Hearings began in February 2017 to “modernize” the ESA, yet it is unclear exactly how “modern” this law will become.

History of the Endangered Species Act

“Male Passenger Pigeon” Courtesy cotinis : License (Public Domain)

The now-extinct passenger pigeon is largely responsible for the expansion of wildlife conservation efforts in the early 1900s. Once the most abundant bird in North America, the passenger pigeon’s sudden extinction (occurring in less than 50 years) captivated Americans who watched as the bird died out. Prior to the passenger pigeon, the whooping crane also garnered widespread attention when it began to disappear rapidly in the late 1890s, though it is still alive today.

The Lacey Act of 1900 was the first federal law to actually regulate commercial animal markets. The act made it unlawful to import, export, sell, acquire, or purchase any fish, wildlife or plants that are taken, possessed, transported, or sold in violation of any state or federal laws. That piece of legislation was later followed by the Migratory Bird Conservation Act of 1929 and the Bald Eagle Protection Act of 1940, which both met little opposition before being implemented.

Yet the official predecessor to what we now know as the Endangered Species Act was in fact the Endangered Species Preservation Act of 1966. Initially, this act provided a means of listing native species as endangered and afforded them limited protections. This also signified a shift from regulating the taking of an animal to focusing more on habitat conservation and preservation. “Taking” an animal is defined in Section 3 of the act and can occur via direct and indirect actions. In Babbitt v. Sweet Home Chapter of Communities for Greater Oregon, a Supreme Court case decided in 1995, the Court concluded that habitat modification can cause “harm” to a listed animal, thereby causing a “take.”

In 1973, President Richard Nixon sought to overhaul the current law and pass comprehensive endangered species legislation, which brought about the Endangered Species Act of 1973. Written by a team of lawyers and scientists, the new law incorporated dozens of new principles and ideas. Currently, the ESA’s stated purpose is to protect species and “the ecosystems upon which they depend.” The ESA is managed by both the U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA), which includes the National Marine Fisheries Service (NMFS). The FWS oversees terrestrial and freshwater organisms, while the NOAA handles marine species.

The Endangered Species Act Amendments of 1978 implemented some significant changes to the ESA. It attempted to “retain the basic integrity of the ESA, while introducing some flexibility which will permit exemptions from the act’s requirements.” One of the most important changes was the creation of the Endangered Species Committee, commonly known as the “God Squad.” The committee is composed of seven Cabinet-level members, and members have the authority to allow the extinction of a species–hence the nickname–by completely exempting a federal agency from Section 7 requirements (after prior consultation with the FWS and NOAA). To date, only the whooping crane and the northern spotted owl have been exempted from Section 7.

Critical Provisions

The primary goal of the ESA is to prevent the extinction of plant and animal life; an ancillary goal is to recover and maintain populations as much as possible by removing or thwarting threats to their survival. There are a few sections of the act that are considered to be the most powerful in their effect: Sections 4, 7, and 9.

To be listed, a species must meet one of the five criteria listed in Section 4(a)(1) of the act. The listing process is lengthy, involving multiple steps before a species is accepted. A species may be delisted, but only after the committee considers if the threats have been eliminated or controlled. This is based on several factors, including population size and growth, and the stability of habitat quality and quantity. Section 4 also requires the designation of a “critical habitat” within one year of a species being placed on the endangered list, though it normally occurs several years afterwards. A critical habitat includes geographic areas that contain features essential to the conservation of the species and that may need special management or protection.

Section 7 prohibits any actions that jeopardize the survival of any endangered or threatened species, as well as actions that could destroy or adversely modify critical habitats of listed species. The section requires all federal agencies to engage in the consultation process with the FWS or NOAA before engaging in any action that may threaten a listed species. Each federal agency is required under Section 7 to confer with the Secretary of the Interior on any action to ensure that such activities are “not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction of or adverse modification of” designated critical habitats. As noted previously, the God Squad has the power to exempt a federal agency from this consultation process under Section 7, if they find no reasonable and prudent alternatives to the agency’s actions.

“Threatened northern spotted owl” Courtesy of USFWS Endangered Species : License (CC BY 2.0)

Lastly, Section 9 prohibits the “taking” of a listed species. It applies to both private and public actions, and applies whether a critical habitat has been designated or not. Section 9 also forbids possessing, selling, or transporting an animal that has been obtained by an unlawful “take,” as well as other prohibitions on imports, exports, and commercial activity. Section 3 of the act specifically defines a “take” as any activity that could “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to engage in any such conduct” a listed species. Harm can occur both directly and indirectly, even via certain habitat modifications.

Proven Success Rate

Currently, there are a variety of species listed as threatened or endangered, including 374 mammals, 338 birds, 185 fish, and 138 reptile species, as well as many more insects, clams, snails, and others. The FWS also acknowledges that roughly 40 species on the list are robust enough in populations to be taken off the protected list. About one percent of the 2,000 species on the list have been delisted because they recovered from extinction.

“Bald Eagle” Courtesy of Pen Waggener : License (CC BY 2.0)

Over the course of its history, the ESA has been nearly 100 percent successful at preventing listed species from going completely extinct. Its successes include the gray wolf, bald eagle, and American crocodile, which are all now thriving species. Very few laws in the U.S. can tout such a high success rate. Only 30 species have disappeared after being placed on the list; many scientists argue that adding species to the list earlier, far before they reach the critical state of endangerment, would add immensely to the ESA’s success.

What Does the Future Hold?

There is now a push to “modernize” the ESA, which defenders of the law contend is an effort to weaken or gut the act completely. Hundreds of bills, introduced primarily by Republican lawmakers, are now seeking to delist a species or somehow weaken the ESA, though most have been unsuccessful. However, the ideal environment to implement significant changes to the act appears to be brewing on Capitol Hill.

Those in favor of overhauling the ESA argue that it imposes too many far-reaching regulatory burdens, particularly on the agricultural industry. Lawmakers point out that the ESA has had a negative impact on drilling, logging, and mining, along with stifling economic growth in these industries. Moreover, private property rights are a concern since the ESA can impose restrictions on property owners’ use of their land because of a listed species. There are estimations that roughly three-quarters of species listed under the ESA reside on private land. One lawmaker recently stated that the act has “never been used for the rehabilitation of a species,” claiming that it has only been utilized to control land.

Still, opponents of any changes to the law argue that the Obama Administration began delisting species significantly, removing a record 29 species from the ESA–more than all previous administrations combined. Modernization of the ESA, environmentalists and activists state, is merely an effort to destroy “the nation’s premier and most effective wildlife conservation law.” Some states, like California, are moving to pre-empt any significant changes to the ESA by passing legislation that would add state-level protections for species that are currently listed as threatened or endangered under the ESA.

Conclusion

Few laws have ever been as successful as the ESA, which has an almost 100 percent success rate in strengthening the population of listed species. Species take decades to recover, hence the low number of animals delisted since the act’s inception. However, there are legitimate concerns about the act’s effect on industries and private landowners. Now, with a new political landscape, significant changes to the law may be on the horizon. What that means for the hundreds of species still extremely threatened or in severe danger of extinction, is still up for debate.

Nicole Zub

Nicole is a third-year law student at the University of Kentucky College of Law. She graduated in 2011 from Northeastern University with Bachelor’s in Environmental Science. When she isn’t imbibing copious amounts of caffeine, you can find her with her nose in a book or experimenting in the kitchen. Contact Nicole at Staff@LawStreetMedia.com.

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