Anthropogenic Noise and the Endangered Species Act

Author:Carolyn D. Larcom
Position:J.D. Candidate 2019, American University Washington College of Law.
Pages:13-14
 
CONTENT
13
Fall 2017
anthropogenic noiSe anD the enDangereD
SpecieS act
Carolyn D. Larcom*
In 2016—with the help of the U.S. Coast Guard—the
National Oceanic and Atmospheric Administration
(NOAA) and Oregon State University sent a titanium
encased hydrophone to a depth of more than 36,000 feet.1
The hydrophone’s mission was simple—to listen.2 During its
three-week commission, at the deepest point in the Mariana
Trench,3 the hydrophone heard ship propellers,4 the moans of
baleen whales, a magnitude ve earthquake, and a category
four typhoon.5 Anthropogenic, or human-caused, noise con-
tributes to this underwater symphony in a myriad of ways and
poses unique challenges in the marine environment to ceta-
ceans.6 This feature examines the continued rise of anthropo-
genic noise and its harmful effects on whale species. It also
advocates for the use of the Endangered Species Act (ESA) in
litigation as an instrument to quiet anthropogenic noise. The
North Atlantic right whale is used as a case study because of its
status as a critically endangered species and its close proxim-
ity to noise pollution along the Atlantic coast and in the Gulf
of Mexico.
Increasing human activity along coastlines is leading to
rising levels of anthropogenic underwater noise.7 This coastal
activity overlaps with critical habitat for species like the North
Atlantic right whale.8 In 2010, NOAA created “CetSound,” a
working group to guide the agency to a more comprehensive
management of ocean noise impacts.9 Christopher Clark of
Cornell University, a marine bioacoustics expert, refers to
anthropogenic noise as “acoustical bleaching” of the oceans.10
The two major forms of anthropogenic noise are chronic
and acute.11 Chronic noise pollution is the low frequency sound
made by ship trafc.12 The hydrophone sent by NOAA man-
aged to pick up the constant humming of container ships pass-
ing overhead some 36,000 feet above.13 Acute noise pollution
is created mostly by ocean exploration for oil and gas and is
doubling every decade.14 The energy from these explosions “ll
the oceans with noise.”15
Anthropogenic noise disrupts marine life, especially
whales, by interfering with their acoustic senses.16 This inter-
ference disrupts their social networks, thus affecting their sur-
vival and reproductive success.17 For the North Atlantic right
whale, the reduction of noise pollution is considered essential
to ensure their long-term recovery.18 Whales are acoustically
oriented and “see” the ocean through sound.19 The effects of
noise pollution on whale populations have been recognized
for over forty years.20 The exclusive statutory protections for
endangered species may provide the best opportunity for stall-
ing detrimental anthropogenic noise in the marine environment.
The ESA makes it unlawful for any person to “take” endan-
gered or threatened species.21 “Take” means to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to
attempt to engage in any such conduct.22 The term “take” has
been broadly dened to include signicant habitat modication
or degradation that results in actual injury or death to members
of an endangered species.23 North Atlantic right whales24 have
been observed increasing their call amplitude with the rise of
background noise.25 An increase in stress related fecal hormone
metabolites26 has been correlated with noise pollution.27 Whales
rely on sound to breed, navigate coastlines, and nd food.28
Anthropogenic noise interferes with their ability to eat, mate,
and navigate; therefore, it is essential to their survival that these
sounds travel the ocean undisturbed.29 Given this interference,
noise pollution should qualify as a “taking” under the ESA as it
signicantly degrades their habitat.
To satisfy the “injury in fact” test, members of an organi-
zation must demonstrate that they are signicantly affected by
the actions of the noise polluter.30 Standing is not conned to
economic harm.31 First, a member would need to be person-
ally affected by the decline in the North Atlantic right whale
population to qualify for standing. Second, a causal connection
between the actions of the noise polluter and the plaintiff’s
injury must be established.32 The effects of noise pollution
on whale populations are well understood.33 A plaintiff would
need to associate a specic oil and gas exploration project
or ocean freight carrier with the harms suffered by the North
Atlantic right whale population. Third, it must be likely that the
injury can be redressed by a favorable ruling.34 The technol-
ogy to reduce noise pollution exists35 and implementing these
technologies to reduce underwater noise would improve the
viability of North Atlantic right whale populations.36 A favor-
able ruling that, at a minimum, demands the implementation
of these technologies will remedy the injury to North Atlantic
right whale populations.37
The Trump administration has sought to lift a ve-year ban
on drilling along the Atlantic coastline, which is critical habi-
tat for North Atlantic right whale.38 Despite these unfortunate
developments that seek to increase the rising rates of anthropo-
genic noise, litigation has been successful in combatting noise
pollution.39 Litigation has successfully targeted navy sonar,
seismic surveys, and offshore oil and gas exploration as a means
to combat noise pollution.40
* J.D. Candidate 2019, American University Washington College of Law.
14 Sustainable Development Law & Policy
The North Atlantic right whale is a critically endangered
species that will undoubtedly be detrimentally harmed by a
continued increase in anthropogenic noise.41 Further litigation
is needed to protect threatened whale species, like the North
Atlantic right whale, from total elimination. Litigation that
qualies anthropogenic noise as a “taking” under the ESA
will prove to be a signicant instrument in combatting this
silent killer.
enDnoteS
1
Bill Chappell, Deep-Sea Audio Recordings Reveal a Noisy
Mariana Trench, Surprising Scientists, NPR (Mar. 4, 2016, 2:27 PM),
http://www.npr.org/sections/thetwo-way/2016/03/04/469213580/
unique-audio-recordings-nd-a-noisy-mariana-trench-and-surprise-scientists.
2
Id.
3
Mariana Trench, encyclopeDia britannica (Feb. 14, 2017), https://www.
britannica.com/place/Mariana-Trench (dening the Mariana Trench as the deep-
est trench known on Earth and noting that the greatest depth ever reached by
humans is located within Challenger Deep, an underwater valley on the oor of
the main trench).
4
Mark Floyd, Mariana Trench: Seven Miles Deep, the Ocean is Still a
Noisy Place, or. St. univ. (Mar. 2, 2016), http://oregonstate.edu/ua/ncs/
archives/2016/mar/mariana-trench-seven-miles-deep-ocean-still-noisy-place.
5
Chappell, supra note 2.
6
Jason Gedamke et al., Ocean Noise Strategy Roadmap, NOAA 1 (2016),
https://cetsound.noaa.gov/Assets/cetsound/documents/Roadmap/ONS_Road-
map_Final_Complete.pdf.
7
Id.
8
North Atlantic Right Whales, noaa fiSherieS (July 20, 2017), http://www.
nmfs.noaa.gov/pr/species/mammals/whales/north-atlantic-right-whale.html
[hereinafter Right Whales].
9
Id.
10
Richard Schiffman, How Ocean Noise Pollution Wreaks Havoc on
Marine Life, yale envt 360 (Mar. 31, 2016), http://e360.yale.edu/features/
how_ocean_noise_pollution_wreaks_havoc_on_marine_life.
11
Id.
12
Id.
13
Chappell, supra note 2.
14
Id; Sarah Gibbens, Deafening Blasts Kill These Ocean Animals for
Miles, natl geographic (June 23, 2017), https://news.nationalgeographic.
com/2017/06/seismic-survey-air-gun-oil-gas-exploration-zooplankton-spd/ (“To
nd oil and gas lying beneath the ocean oor, petroleum companies emit blasts
of compressed air underwater. These seismic blasts penetrate miles into the
seabed and reect information about any valuable deposits buried below.”).
15
Schiffman, supra note 10.
16
Id.
17
Id.
18
North Atlantic Right Whale 5-Year Review, noaa fiSherieS Serv. ne.
regl office 11-12 (Aug. 2012), http://www.nmfs.noaa.gov/pr/pdfs/species/
narightwhale_5yearreview.pdf [hereinafter 5-Year Review].
19
Schiffman, supra note 10.
20
Gedamke et al., supra note 6, at 64.
21
Endangered Species Act of 1973, 16 U.S.C. § 1538(a)(1)-(2) (1988).
22
Id. § 1532.
23
Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687,
697 (1995).
24
Right Whales, supra note 8 (explaining that the “northern right whale” is
listed as two separate species, the North Pacic right whale and North Atlantic
right whale — the North Atlantic right whale is critically endangered with its
western population estimated at about 465 individuals and the eastern popula-
tion “nearly extinct”).
25
5-Year Review, supra note 18, at 11-12.
26
Id. at 12 (noting elevations of stress related fecal hormones negatively
affect growth, immune system response, and reproduction).
27
Id.
28
Schiffman, supra note 10.
29
Id.
30
See Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972) (noting that the
injury suffered by a plaintiff must be cognizable and individually experienced).
31
Id. at 734-35 (holding that aesthetics and environmental well-being are not
excluded from the “injury in fact” test).
32
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (holding that the
injury has to be “fairly traceable” to the action of the defendant).
33
Gedamke et al., supra note 6, at 64.
34
Lujan, 504 U.S. at 561 (holding that it must be likely, as opposed to specu-
lative, that a favorable ruling will nullify the harm).
35
Schiffman, supra note 10 (describing a new technology that “uses a sweep
of sound that is orders of magnitude quieter” for oil and gas exploration).
36
Right Whales, supra note 8, at 11-12 (explaining that the continued
viability of the North Atlantic right whale in part depends on the reduction of
anthropogenic noise).
37
Id.
38
Oliver Milman, Trump Called ‘Threat to Every Coastline’, the guarDian
(June 30, 2017, 12:04 AM), https://www.theguardian.com/environment/2017/
jun/30/donald-trump-environment-ocean-drilling-atlantic-arctic; Right Whales,
supra note 8.
39
Ocean Noise, ctr. for biological DiverSity, http://www.biologicaldiver-
sity.org/campaigns/ocean_noise/ (last visited Dec. 20, 2017).
40
Id.
41
Right Whales, supra note 8.