AuthorRogers, Giulia
  1. INTRODUCTION 1028 II. ACUTE, CHRONIC, AND CUMULATIVE ANTHROPOGENIC OCEAN NOISE POLLUTION AND ITS EFFECTS ON MARINE MAMMALS 1033 A. Anthropogenic Ocean Noise Pollution 1033 1. Acute AONP Sources and Their Impacts 1034 2. Chronic AONP Sources and Their Impacts 1037 III. THE MARINE MAMMAL PROTECTION ACT 1039 IV. COURTS' INTERPRETATIONS OF THE MARINE MAMMAL PROTECTION ACT 1042 A. Early Cases 1042 B. The Pritzker Decision and the Limitations of AONP Regulation Under the MMPA 1043 1. "Negligible Impact" and "Least Practicable Adverse Impact". 1045 2. "Least Practicable Adverse Impact" Requirements 1047 3. Significance of the Pritzker Decision and What the Case Demonstrates About AONP Regulation 1048 V. NOAA'S ROADMAP: CAN ITS GOALS BE ACCOMPLISHED USING EXISTING STATUTORY AUTHORIZATIONS? 1050 VI. SUGGESTIONS 1054 VII. CONCLUSION 1055 I. INTRODUCTION

    Anthropogenic ocean noise pollution (AONP) (1) has been rising since the industrial revolution, and its rapid growth over the last seventy-five years has led to critical changes in the ocean soundscape. (2) This dramatic increase in AONP has created wide-ranging threats to marine mammals by causing fundamental behavioral changes, (3) including disruptions in normal migration, reproduction, and communication, as well as habitat abandonment. (4)

    Marine mammals are significantly affected by AONP because these animals rely on hearing and sound in the same way that humans rely on sight (5)--as an essential component of their environment that enables them to navigate their surroundings, communicate with members of their species, find prey, and avoid predators. (6) One particularly horrific stranding event exemplifies the severe damage AONP can cause. In the Bahamas in 2000, United States Department of the Navy vessels used mid-frequency sonar, which caused seventeen whales from various species to beach themselves, including Cuvier's beaked whales, minke whales, and a dolphin. (7) When scientists examined the whales, they found bleeding around the cetaceans' brain and ears, injuries likely stemming from exposure to loud noise. (8)

    Despite AONP's well-known impacts on marine mammals, Congress has failed to provide agencies with the tools necessary to adequately address the problem. There is currently no statute that specifically addresses AONP. (9) To date, the National Marine Fisheries Service (NMFS) has used the Marine Mammal Protection Act (10) (MMPA or the Act) to address ocean noise from a limited number of sources, such as Navy sonar used during military preparedness activities. (11) Although Congress enacted the MMPA due to concerns that human activity was harming marine mammal populations and that some species were in danger of extinction, (12) the MMPA does not allow NMFS to address AONP comprehensively. (13)

    The MMPA's regulatory framework is limited and does not provide an effective way to protect marine mammals from chronic and cumulative AONP because it only regulates AONP from "specified activit[ies]." (14) The MMPA protects marine mammals and their "essential habitats" from the injurious effects of human activities (15) through the Act's broad "take" prohibition. (16) The MMPA gives NMFS the authority to permit "incidental" take of "small numbers" of marine mammals by "citizens of the United States" pursuant to "specified activit[ies]... within a specific geographical region" so long as the applicant meets certain requirements. (17) To authorize incidental take, NMFS must first find that the total authorized take "will have a negligible impact." (18) And second, NMFS must provide regulations that ensure the "least practicable adverse impact" to marine mammals. (19) By limiting its reach to "specified activit[ies]... within a specified geographical region," the MMPA does not provide a basis for regulating aggregated AONP effects from various human activities across many economic sectors. (20)

    The MMPA does have strengths; it successfully regulates acute sources of AONP, like military sonar. (21) However, its largest downfall is its failure to address noise impacts cumulatively. The MMPA is activity specific. (22) Thus, while it may enable NMFS to protect marine mammals from individual acute sources of AONP, (23) such as seismic testing from a single oil and gas project or military sonar, (24) it does not provide the tools necessary to protect marine mammals from chronic and cumulative AONP. (25) The most recent case dealing with sonar, marine mammals, and the MMPA is Natural Resources Defense Council, Inc. v. Pritzker. In Pritzker, the United States Court of Appeals for the Ninth Circuit found that the MMPA required NMFS to take measures to attain the "least practicable adverse impact" standard before allowing any incidental take of marine mammals. (26) The court held that NMFS's determination that the sonar activities would have a negligible impact on marine mammal species was insufficient under the MMPA. (27) The court explained that in order to authorize take of marine mammals incident to Navy activities, NMFS must also consider mitigation measures to ensure that there will not be a significant impact on marine mammals and that the "least practicable adverse impact" is achieved. (28) While Pritzker is a victory for marine mammal protection, that victory is limited. The Pritzker decision exemplifies how acute AONP has been successfully regulated under the MMPA. But even if the impacts of noise from sonar are reduced, marine mammals are still bombarded with noise from recreational and commercial vessels, oil and gas exploration, offshore construction, and offshore renewable energy sources. (29)

    The National Oceanic and Atmospheric Administration (NOAA) has attempted to address noise more comprehensively in its Ocean Noise Strategy Roadmap (Roadmap), (30) but even the new Roadmap fails to address some of the chronic sources and cumulative effects of AONP. In the Roadmap, NOAA details that the agency intends to work with current statutory authority, like the MMPA, to more effectively manage AONP. (31) The Roadmap notes that NOAA may be able to rely on existing provisions in the MMPA such as the Act's provisions regarding "incidental take authorizations," (32) "general rulemaking authority," (33) and "conservation plans" (34) to address chronic and cumulative AONP. For example, NOAA explained that it could rely on the Act's "conservation plan" section to potentially incorporate an Endangered Species Act (35) (ESA)--like "site-specific management action" (36) provision to help reduce ocean noise. (37) NOAA also noted that it could rely on the Act's provision regarding permits for incidental take of marine mammals in the course of commercial fishing operations to impose mitigation requirements as a part of issuing permits. (38) The Roadmap acknowledges the extent of the AONP problem, makes promises to address it, and calls for interagency collaboration. (39) Although the Roadmap is promising, it does not include an implementation plan, require specific action within the agency, or detail how the agency will foster interagency cooperation. NOAA's ability to accomplish the laudable goals described in the Roadmap using existing MMPA statutory authorizations is unlikely. Without a concrete plan for implementation or a commitment to formal rulemaking, the Roadmap's goals may never come to fruition. The Pritzker decision helps ensure that marine mammals receive protection from acute sources of AONP under the MMPA. (40) However, these sources are only part of the problem. And while the Roadmap deals directly with the issue of AONP and has the potential to offer solutions to the cumulative AONP problem, NOAA is constrained by its need to work only within existing mandates, which likely limits the Roadmap's efficacy. While Pritzker and the Roadmap are steps in the right direction, it is unlikely that either one, without more, will provide comprehensive protection from AONP for marine mammals and their environment.

    Part II of this Chapter explores the problem of acute, chronic, and cumulative AONP and its effects on marine mammals and their habitat. Part III discusses the historical regulatory approach to acute noise pollution under the MMPA and explains why this approach is ineffective in solving the larger AONP problem by highlighting the importance of Pritzker and explaining the case history of AONP under the MMPA. Part IV analyzes the Roadmap and discusses how NOAA's decision to work within current mandates on improving effective implementation rather than expanding current authorities or committing to formal rulemaking limits the agency's approach. The Chapter concludes, in Part V, with some suggestions about how the Roadmap and the existing statutory framework may be expanded to more successfully reduce AONP.


    1. Anthropogenic Ocean Noise Pollution

    In a similar manner to the way air pollution negatively impacts life on land, (41) AONP severely disrupts marine life and especially the lives of marine mammals, which rely almost exclusively on sound to communicate and navigate in their environment. (42) According to Christopher Clark, (43) an expert in ocean noise, humans are "injecting so much noise [into the sea] that we are effectively acoustically bleaching the world's oceans." (44) AONP comes in two major forms: acute and chronic, both of which adversely impact marine mammals. (45) Cumulative AONP refers to the impacts and effects of acute and chronic AONP in the aggregate. (46)

    AONP's adverse effects on marine mammals are well documented and no longer a source of scientific debate. (47) The effects of acute AONP are more dramatic, direct, and immediate than the impacts from chronic AONP. (48) However, the effects of chronic AONP tend to be longer-term and more wide-ranging. (49) In tandem, these sources of AONP affect marine mammals briefly in...

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