Industry sees opening to revamp species protection law
Emily Yehle, E&E News reporter Published: Friday, February 3, 2017
About 30 baleen whales live year-round in an underwater canyon off the Florida Panhandle, in an area of the Gulf of Mexico that is currently off-limits to oil and gas activity but could be reopened in 2022.
The subspecies of Bryde's whale may be the most endangered whale in the world, and right now, one U.S. law prohibits companies and agencies from killing or harassing them: the Marine Mammal Protection Act.
The 45-year-old law has avoided tinkering by Congress since 1994, when provisions were added to address fisheries that inadvertently harm marine mammals. But the oil and gas industry has long found the act's permitting process burdensome — and it sees a possible opening for updates with a Republican Congress and a Trump administration.
Like other statutes, the MMPA "should be reviewed and reauthorized from time to time to reflect current-day realities," said Dustin Van Liew, director of regulatory and government affairs at the International Association of Geophysical Contractors. "The act has predominantly fulfilled the original intent of Congress, ending the threat of extinction and allowing for increasing populations of marine mammals across the board in response to the regulation of overhunting, overfishing and unscrupulous trade."
Van Liew said the IAGC "welcomes a discussion" with Congress and the administration on how to modernize the MMPA. The National Ocean Industries Association declined to comment on the MMPA, referring a reporter to IAGC.
It's unclear whether the MMPA will interest GOP lawmakers who have historically focused on higher-profile laws such as the Endangered Species Act and the Antiquities Act. But several environmental groups are already sounding the alarm.
The Natural Resources Defense Council included MMPA on a list of the policies that it worries could be weakened by the Trump administration and its "GOP allies." Oceana has also identified it as a possible target of the current Congress.
"In terms of 'modernize,' I would point out that's language we often hear from industry affected by environmental laws and regulations," said Lara Levison, senior director of federal policy at Oceana. "The law has done a great deal to protect marine mammals, but its work is far from accomplished."
Michael Jasny, director of NRDC's Marine Mammal Protection Project, said he doesn't know of any specific plans to amend the MMPA. But he pointed to past industry criticism of the incidental harassment authorizations required under the law for any project that might harm or disturb a marine mammal.
"It's hard not to be worried about everything," Jasny said. "This is a dark age for anyone who is concerned about the environment or public health."
'Why should it take so long?'
Broadly, the MMPA prohibits anyone from harassing or killing a marine mammal without permission from the National Oceanic and Atmospheric Administration.
NOAA's National Marine Fisheries Service routinely gives that permission to various companies, groups and federal agencies, along with a set of requirements to mitigate the effects of a project on marine mammals.
A company conducting seismic surveys, for example, usually is limited to operating its underwater air guns during certain times and within certain areas. That's because the air guns — used to find mineral deposits beneath the seafloor — can mask the calls of whales, as well as interrupt their feeding and cause hearing loss.
Those mitigation measures can be a source of controversy, with environmental groups sometimes arguing that they are not stringent enough. Most recently, a federal appeals court ruled in favor of NRDC and others in holding that NMFS failed to adequately consider the impacts of the Navy's sonar testing system on marine mammals (E&E News PM, July 15, 2016).
For the oil and gas industry, a main frustration has been the length of the permitting process. IAGC pointed to its members' attempts to get authorization for seismic surveys in the Atlantic.
The permits were rolled up into a broader controversy over the Obama administration's initial proposal to open the Atlantic to drilling. The administration eventually decided to not allow oil and gas leasing off the East Coast — and eventually denied the permits for seismic surveys.
But by then, NOAA had spent more than two years reviewing applications from companies for geophysical surveys. The delay was brought up at least once in a congressional hearing, with an IAGC witness asserting that seismic surveys don't hurt marine mammal populations (E&E Daily, July 15, 2015).
"Seismic surveying can be conducted safely, causing no harm to marine mammals, so why should it take so long to get a permit?" Rep. Doug Lamborn (R-Colo.) said at the 2015 hearing. "I have yet to hear a reasonable answer to this question."
That same year, Republican Sens. Bill Cassidy of Louisiana, John Cornyn of Texas and Thad Cochran and Roger Wicker of Mississippi — along with then-Sen. David Vitter of Louisiana — proposed changes to the MMPA process in a bill to expand oil and gas activity to the eastern Gulf, home of the Bryde's whale (E&E Daily, May 13, 2015). Among other things, the bill would have set hard deadlines for NOAA to act upon or deny requests for incidental harassment authorizations.
Van Liew of IAGC said yesterday that MMPA, "as applied today, is imposing regulatory burdens that are impossible for the federal government to meet."
"Offshore energy development is threatened with major delays and unnecessary restrictions due to the inability of federal agencies to implement the MMPA's vague or overly protective standards," he said.
Environmentalists pointed out that the Atlantic is new territory for oil and gas activity, as well as home to the endangered North Atlantic right whale. Gathering and analyzing the best available science for an incidental harassment authorization would take NOAA longer than usual in that case, they said.
At a time when the ocean is becoming more dangerous to marine mammals — thanks to increasing ship traffic, noise and energy development — Jasny and Levison said the MMPA is an important protection.
"Trying to open up a statute to undermine it in any way, it's inappropriate," Jasny said. "It would meddle with a statute that is working well, and it would go against the passionate interest and concern of the American public."