Environmental Groups Sue to Protect Rare Whales | March 2024
March 2024 | Volume 15, Issue 78
Read the full article from ABCNews.
According to the article, a coalition of environmental groups has sued the federal government to try to force the finalization of ship speed rules that the groups say are critically important to save a vanishing species of whale.
Proposed Ship Speed Rules
The proposed ship speed rules would require vessels off the East Coast to slow down more often to help save the North Atlantic right whale. The whale numbers less than 360 and has been in decline in recent years in large part because of collisions with ships and entanglement in commercial fishing gear.
The environmental groups filed in federal court recently with a request to allow a paused lawsuit about the ship speed rules to go forward. Members of the groups have criticized the federal government for delays in releasing the final rules and said they hope to force a deadline via their lawsuit.
“The federal government has known for years that right whales urgently require expanded vessel strike protections, yet has repeatedly kicked the can down the road,” said Jane Davenport, senior attorney at Defenders of Wildlife, one of the groups involved in the lawsuit.
The National Oceanic and Atmospheric Administration’s Involvement
The National Oceanic and Atmospheric Administration announced the proposed ship speed rules in summer 2022. The rules would expand slow zones off the East Coast that require mariners to slow down. They would also require more vessels to comply with those rules.
NOAA is still working on finalizing the rules, said Andrea Gomez, a spokesperson for the agency.
Gomez said the agency cannot comment on the lawsuit itself.
“While NOAA Fisheries anticipated taking action on the proposed rule to modify North Atlantic right whale vessel speed regulations in 2023, the rulemaking process remains underway,” Gomez said.
Recent Injuries and Deaths of Right Whales
Members of the environmental groups said they were motivated to file court papers in part because of recent injuries and deaths suffered by right whales, which are migrating along the East Coast. One right whale found dead off Massachusetts in January showed signs of chronic entanglement in fishing gear, NOAA officials said. The agency said recently that its analysis of the gear showed that the rope was consistent with the kind used in Maine state waters, indicating the whale traveled while entangled.
Environmentalists, commercial fishermen and the federal government have also been in court for years about laws designed to protect the whales from entanglement.
Right whales were once abundant off the East Coast but were decimated during the commercial whaling era. In recent years, scientists have said climate change is a threat to the whales because the shifting locations of the food they eat causes them to stray from protected areas of ocean.
“Watching North Atlantic right whales get hurt while federal agencies drag their feet on a speed limit rule is heart-wrenching and beyond frustrating,” said Catherine Kilduff, a senior attorney at the Center for Biological Diversity, another group involved in the lawsuit.
Discussion Questions
- Define “standing” to sue. In your reasoned opinion, do the environmental groups in this case have standing to sue? Why or why not?
At the federal level, legal actions cannot be brought simply because an individual or group is displeased with a government action or law. Federal courts only have constitutional authority to resolve actual disputes.
In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the U.S. Supreme Court created the following three-part test to determine whether a party has standing to sue:
The plaintiff must have suffered an “injury in fact,” meaning that the injury is of a legally protected interest which is (1) concrete and particularized and (b) actual or imminent;
There must be a causal connection between the injury and the conduct brought before the court; and
It must be likely, rather than speculative, that a favorable decision by the court will redress the injury.
Whether the environmental groups in this case have standing to sue is a threshold determination for the court (i.e., the trial court judge) to make. In the Lujan v. Defenders of Wildlife case, environmental groups sued under the Endangered Species Act’s “citizen-suit” provision, which permitted anyone to sue for an injunction to stop a party or government actor from violating the Act. The U.S. Supreme Court ultimately concluded that the plaintiffs lacked standing because they were merely asserting a generalized grievance against the government and were unable to demonstrate a personal injury other than the harm suffered equally by all citizens. - As mentioned in the article, the environmental groups filed the subject case in federal court. Does the federal court system have jurisdiction in this case? Why or why not?
“Jurisdiction” refers to the legal authority granted to a legal entity (e.g., a court) to preside over a case and render a decision. Federal courts have jurisdiction over cases involving:
The U.S. government;
The U.S. Constitution or federal laws; or
Controversies between states or between the U.S. government and foreign governments.
Since the subject case involves both the U.S. government as a party (the defendant) and federal law [more particularly, National Oceanic and Atmospheric Administration (NOAA, a federal administrative agency) ship speed rules], the federal court system has jurisdiction in this case.
The federal court system also has jurisdiction over admiralty law, the body of law that governs navigation and shipping. The subject case involves federal ship speed rules proposed by the NOAA. - As mentioned in the article, the environmental groups involved in this case seek to implement ship speed rules proposed by the National Oceanic and Atmospheric Administration (NOAA). Describe the NOAA. In your reasoned opinion, are ship speed rules an example of overregulation by a federal administrative agency such as the NOAA? Explain your response.
The National Oceanic and Atmospheric Administration (NOAA) is a scientific and regulatory agency within the U.S. Department of Commerce. According to its website (www.noaa.gov):
“…NOAA’s…services support economic vitality and affect more than one-third of America’s gross domestic product. NOAA’s dedicated scientists use cutting-edge (research and technology) to provide citizens, planners, emergency managers and other decision makers with reliable information they need, when they need it.
NOAA’s mission (is) to better understand our natural world and help protect its precious resources…
Our agency holds key leadership roles in shaping international ocean, fisheries, climate, space, and weather policies. NOAA’s many assets—including research programs, vessels, satellites, science centers, laboratories and a vast pool of distinguished scientists and experts—are essential, internationally recognized resources. We work closely with other nations to advance our ability to predict and respond to changes in climate and other environmental challenges that imperil Earth’s natural resources, human life, and economic vitality.”
In terms of whether ship speed rules are an example of overregulation by a federal administrative agency such as the NOAA, student responses may vary. Your author would note that a significant part of the NOAA’s mission as a federal administrative agency is to strike a delicate balance between the interests of commerce and preserving our planet’s natural resources (Remember, the NOAA is “housed” within the U.S. Department of Commerce). Ask your students whether business, unregulated and left to its own devices, would strive to achieve such a balance.