WASHINGTON (CN) – The National Marine Fisheries Service erred by not considering the impact of climate change when it drafted a biological opinion on loggerhead turtles in the northwest Atlantic, a federal judge ruled.
But in his August 31 ruling, U.S. District Judge Paul Friedman said over all the agency’s biological opinion on the impact of seven east coast fisheries on turtle populations is not arbitrary, as greens had charged.
Friedman granted in part and denied in part a motion for summary judgment filed by Oceana Inc., challenging the agency’s determination that seven fisheries it studied are not jeopardizing the existence of loggerhead sea turtles, and sent the opinion back to the fisheries service for certain clarifications.
In an “incidental take” report on seven east coast fisheries, the agency calculated the numbers of sea turtles that might be caught in specific types of fishing devices, and of those how many might die.
By the agency’s calculations, approximately 483 loggerhead turtles will be caught annually, 239 of which might die.
Oceana had challenged the agency’s report, saying it uses five year study intervals in its calculations, which is too long, and doesn’t take into effect the shorter-term effects of global warming.
Friedman agreed with Oceana that the “incidental take” report doesn’t explain how the agency will monitor whether the take limits have been exceeded, and that the agency’s reasons for why it only monitors the turtles every five years aren’t clear.
While the court isn’t in a position to say that the agency’s five year monitoring cycle is “per se arbitrary and capricious,” as Oceana had claimed, Friedman found that, “there is apparent ‘tension’ between the regulatory mandate and the infrequency with which NMFS measures take estimates against the take limit … and this dissonance places an onus on the agency to adequately explain the reasonableness of the approach.”
The report was handed back to the agency for clarification on incidental takes and on the “sufficiency of its monitoring mechanisms.”
Friedman also sent the report back asking for clarification on the connection between the record evidence of present and short-term effects caused by climate change, and the agency’s “conclusion that climate change will not result in any significant effects” on loggerhead turtles in the short term future.
Oceana claimed the agency failed to consider the effects of climate change on loggerheads in its biological opinion, but Friedman disagreed, saying he “found the agency’s failure to offer precise projections of climate change impacts on loggerheads was adequately explained by a lack of scientific information.”
Friedman also disagreed with Oceana’s claim that the fisheries service only looked at climate change within the context of a ten-year time frame, and said the agency’s opinion “discussed the long-term impact of climate change.”
However, Friedman said, Oceana “accurately” observed that the agency had emphasized the short-term over the long-term, “but Oceana overstates the case when it accuses the agency of thereby ‘assuming no impact from climate change’ in performing the jeopardy analysis.”
The National Marine Fisheries Service’s opinion “does consider the possible impacts of climate change on loggerheads, including that because loggerhead sex determination is based on heat, when sea temperatures rise, ‘highly female-based sex ratios’ may result, and that climate change might affect the availability and distribution of prey, such as shellfish, on which loggerheads feed,” Friedman wrote. “The agency ultimately concluded, however, that it lacked the ability to offer more definite projections of these effects.”
The judge said a comprehensive reading of the agency’s analysis “demonstrates that the agency did address long-term effects, yet found them to be too indeterminate to yield clearly articulable conclusions.”
Also, he wrote, “Oceana has neither pointed to relevant data that was ignored, nor has it explained how NMFS might have more thoroughly analyzed or ‘modeled’ the available data, as Oceana asserts would be possible. …The court therefore concludes that NMFS’ analysis is not arbitrary and capricious for a purported failure to consider the long-term effects of climate change on loggerheads.”
The agency’s reliance on a purported “century scale” for the effects of climate change, however, wrote the judge, shows that it “did not take full account of the record evidence of short-term effects caused by climate change.”
“Indeed,” Friedman wrote, the fisheries service’s report “describes clear evidence that climate change is exerting significant environmental impacts right now, as well as evidence that these impacts will persist or accelerate in the immediately approaching decades.”
But the fact that the fisheries service nevertheless stated that the effects of climate change will be seen primarily on the century scale “seems to ignore this evidence and therefore cannot support the agency’s conclusion that ‘it is unlikely that climate related impacts will have a significant effect on the status of …sea turtles… in the short-term future,'” Friedman wrote.
In particular, the fisheries service report does not explain how its conclusion is a reasonable one in view of the potential short-term impacts caused by sea-level rise, which is expected to ”result in increased erosion rates along nesting beaches,” Friedman wrote.
“The relevance of sea-level rise as a factor affecting loggerheads in the present and near-term future – and the consequent need for the agency to provide further explanation – is reinforced by a recent study by the U.S. Geological Survey finding that sea levels in a 620-mile ‘hot spot’ along the East Coast are rising three to four times faster than the global average,'” Friedman wrote.
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