OAKLAND, Calif. (CN) — A judge says federal agencies under the Trump administration ran afoul of environmental law by codifying shipping routes in the Pacific Ocean which could harm endangered species such as humpback whales.
U.S. Magistrate Judge Kandis Westmore released an order Wednesday granting a summary judgment for the Center for Biological Diversity and Friends of the Earth — turning down National Marine Fisheries Service’s move for its own summary judgment.
In January, the plaintiffs filed a motion for summary judgment, challenging the Service’s Biological Opinion codifying shipping lanes that vessels use to approach Pacific Ocean coastline ports. They alleged this opinion will result in significant numbers of ship strikes with Endangered Species Act-protected species.
In their statement released when the case was first filed in January 2021, the plaintiffs said the U.S. Coast Guard and National Marine Fisheries Service failed to meet Endangered Species Act consultation requirements.
“This failure resulted in a flawed biological study that didn’t consider actions proven to reduce ship strikes, including mandatory vessel speed limits and routing changes to reduce shipping traffic’s overlap with areas of high whale densities. The administration was notified twice last year that it was violating the law.”
The plaintiffs say the Pacific Ocean waters off the California coast include habitat for endangered and threatened whale populations due to seasonal feeding areas for humpback, blue whales and fin whales. Endangered leatherback sea turtles also have critical habitat in these waters.
The whales face a number of threats, including vessel strikes, disturbance caused by scientific research, climate change and marine pollution, reduced prey abundance and habitat degradation. The fisheries’ routes of large commercial ships in the area mean humpback whales are highly vulnerable to vessel strikes, the Center alleged.
Vessel strikes are the primary threat currently facing blue whales. And for each documented ship strike mortality of these whales, scientists estimate that there are numerous undocumented deaths.
Humpback whales are also vulnerable to deaths from fishing gear entanglements. They are the most commonly observed whale species entangled in fishing gear off the West Coast.
The Service issued its Biological Opinion on the U.S. Coast Guard’s codification of traffic separation schemes near the port of Los Angeles and Long Beach and the Santa Barbara Channel and the port of San Francisco.
This opinion said that “[i]n almost all cases, the proposed action is expected to reduce co-occurrence by reducing the spatial distribution of ships in areas where whale density appears to be consistent across an area or by keeping ships away from habitat features where it is expected whales or leatherback sea turtles aggregate. As a result, because we anticipate that exposure to shipping lanes is reduced overall, we also similarly expect that the overall risk of vessel strikes is reduced.”
The agency concluded in the opinion that the codified shipping route schemes were “not likely to jeopardize the continued existence of blue or humpback whales,” and “that the effects of the TSS on fin whales and leatherback sea turtles are extremely unlikely, and therefore discountable.”
But the plaintiffs sought declaratory and injunctive relief that the opinion is unlawful and that the fisheries and Coast Guard are violating the Environmental Species Act. They requested an order compelling the agencies to complete reinitiated consultation within six months, with measures like mandatory speed reductions to reduce ship strikes.
“Whales off the California coast just got a bit of much-needed legal protection, and I’m glad the court understood the Coast Guard’s shipping lane decisions have life and death consequences for these magnificent endangered animals,” said Brian Segee, an attorney at the Center for Biological Diversity. “After more than a decade of delay, it’s time for federal officials to quickly come up with a better plan for routing and slowing down ships, since whales and sea turtles are facing deadly risks every day.”
NOAA Fisheries Assistant Administrator Chris Oliver, the U.S. Coast Guard and Commandant Karl L. Schultz filed a cross-motion for summary judgment on March 17.
Westmore wrote in a 21-page order Wednesday that the plaintiffs are entitled to summary judgment on their accusation of violation of the Endangered Species Act, and that the Coast Guard's reliance on the opinion is also “arbitrary and capricious.”
She wrote that the opinion lacked an “incidental take statement” required to specify the authorized take of each affected species, and that the Fisheries were inaccurate in saying a statement was not required.
“The problem is that TSS have been in use for more than 50 years, rendering the no-lane scenario a false comparator,” Westmore said.
“While the court will give some deference to the no-lane scenario, generally, Defendants run afoul of the ESA when they use the no-lane scenario to determine that there is no incidental taking simply because more species would be harmed by the hypothetical, no-lane scenario than by the TSS lanes. Such a determination defies logic particularly when it is undisputed that the impacted, protected species are harmed by TSS lanes.”
“Accordingly, the 2017 Biological Opinion is vacated and set aside,” she ruled.
Lawyers for both sides did not respond to requests for comment on the outcome.
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