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Seismic Testing to Expand Offshore Drilling and its Effect on Marine Mammals

Seismic Testing to Expand Offshore Drilling and its Effect on Marine Mammals

Dayna Spero

Noise pollution is a serious threat to marine mammals and has become increasingly prevalent with modern technology.[1] Some of the lead causes of noise pollution in the oceans include: commercial shipping, sonar, and air guns.[2] President Donald Trump has proposed allowing five companies to use air guns in seismic testing as a method to expand drilling in the Atlantic Ocean.[3] These five companies filed requests with the National Oceanic and Atmospheric Administration (NOAA) to authorize the incidental take of marine mammals that may occur as a result of these seismic surveys.[4]

Air guns typically emit low-frequency noises that can affect mammals’ behavior.[5] Low-frequency noises can cause mammals to leave their breeding grounds, affect mammals’ communication with one another, impact mammals’ ability to capture prey, and increase mammals’ stress levels, which can lead to destructive behaviors.[6]

The Department of the Interior (DOI) estimates that the seismic surveys in the Atlantic Ocean will cause 13.5 million instances of harmful interactions with marine mammals.[7] The DOI further estimates that seismic surveys will injure—or even kill—approximately 138,000 dolphins and whales, including nine critically endangered North-Atlantic right whales.[8]

The Marine Mammal Protection Act does not adequately protect these animals. An exemption allows companies to obtain permits to further their oil and gas exploration, so long as the taking of marine mammals is incidental,[9] and there would only be a negligible impact on the species.[10] Making these permits so easy to obtain harms marine mammals and counteracts the intended purpose of the Act.[11]

However, the North-Atlantic right whale may be afforded protection under the Endangered Species Act, since right whales are listed as endangered.[12] The Endangered Species Act was enacted to protect species that are listed as threatened or endangered, and habitats that are critical to those species.[13] Courts have defended this Act on numerous occasions, holding that Congress intended endangered species to be afforded the highest of priorities, no matter the cost.[14]

Part I of this Note provides background information on seismic surveys, and in particular, President Donald Trump’s proposal to allow the use of seismic surveys in the Atlantic Ocean for oil and gas exploration. Part II considers the pros and cons of the Marine Mammal Protection Act, specifically, its deficiencies in adequately protecting marine life. Next, Part III discusses how the Endangered Species Act could be used to potentially prevent or limit seismic testing in the Atlantic Ocean. Finally, Part IV discusses the possibility of litigation and explores the idea of amending the Marine Mammal Protection Act.

[1] Int’l Fund for Animal Welfare, Ocean Noise: Turn it Down 6 (2008), http://www.ifaw.org/sites/default/files/Ocean%20Noise%20Pollution%20Report.pdf.

[2] Id. at 10–12.

[3] Merrit Kennedy, Trump Administration Seeking Permits for Seismic Air Gun Surveys in Atlantic, Nat’l Public Radio (June 5, 2017, 5:43 PM), http://www.npr.org/sections/thetwo-way/2017/06/05/531608746/trump-administration-seeking-permits-for-seismic-air-gun-surveys-in-atlantic.

[4] Taking of Marine Mammals Incidental to Geophysical Surveys in the Atlantic Ocean, 82 Fed. Reg. 26,244, 26,245 (June 6, 2017).

[5] Benjamin A. Harris, Turn Down the Volume: Improved Federal Regulation of Shipping Noise Is Necessary to Protect Marine Mammals, 35 UCLA J. Envtl. L. & Pol’y 206, 211–212 (2017).

[6] Id.

[7] Seismic Surveys for Oil, Center for Biological Diversity, http://www.biologicaldiversity.org/campaigns/seismic_blasting/ (last visited Oct. 22, 2017).

[8] Id.

[9] Elena McCarthy & Flora Lichtman, The Origin and Evolution of Ocean Noise Regulation Under the U.S. Marine Mammal Protection Act, 13 Ocean & Coastal L.J. 1, 11 (2007).

[10] 50 C.F.R. § 216.103 (2017).

[11] See 16 U.S.C. § 1361 (2012) (stating the purpose of the Marine Mammal Protection Act).

[12] Duke U., Seismic Surveys Could Threaten Endangered Whales, Physics (Apr. 15, 2016), https://phys.org/news/2016-04-seismic-surveys-threaten-endangered-whales.html.

[13] 16 U.S.C. §§ 1531–33.

[14] Tenn. Valley Auth. v. Hill, 437 U.S. 153, 174 (1978).

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