Climate of Our Future

Earthjustice.org

Maine fishermen seeking to stop industrial trawl ships from entering fish sanctuaries
July 26, 2010
Port Clyde, Maine — A federal magistrate judge in Washington, DC has issued an opinion ordering the National Marine Fisheries Service (NMFS) to reconsider its decision to reject a petition by the Midcoast Fishermen’s Association and Fisherman Curt Rice which sought to stop industrial Atlantic herring trawl ships from slaughtering cod, haddock, and other groundfish in sanctuaries designed for their protection. For years industrial Atlantic herring trawl ships have caught groundfish in their nets as bycatch contributing to the steep decline and slow recovery of these fish populations.

In 2007 public interest law firm Earthjustice filed a petition on behalf of the Midcoast Fishermen’s Association, based in Port Clyde Maine, and the Northwest Atlantic Marine Alliance, formerly based in Saco, Maine, seeking to exclude industrial trawlers from designated areas of the ocean designed to protect the nursery grounds of New England’s depleted groundfish populations. The agency rejected the petition in November 2007 in a cursory one-page letter stating it was not concerned about the levels of groundfish bycatch by midwater trawl ships.

In the latest ruling, Federal Magistrate Judge John M. Facciola found the agency’s failure to explain its reasons for denial “fatal”. He also recommended that the court resubmit the petition to the agency so NMFS could then explain their reasoning while also considering all the appropriate data in support of the petition, including scientific analysis showing that the amount of groundfish bycatch occurring is significantly worse than even existing data shows.

“Nobody should have access to groundfish closed areas unless it’s established through a carefully designed exempted fishing permit with the highest levels of monitoring that they can fish cleanly,” said Glen Libby, a groundfisherman from Port Clyde, Maine and chairman of the Midcoast Fishermen’s Association (MFA). “That did not happen with this fishery and year after year we’ve seen a lot of perfectly good groundfish showing up on the docks mixed in with herring sold as bait for lobster traps. That is not helping with groundfish recovery.”

“NMFS’s failure to carefully monitor midwater trawl ships and to protect groundfish nursery grounds from their indiscriminate fishing practices has been a significant factor in the slow recovery of the once-robust groundfish populations,” said Earthjustice attorney Roger Fleming. “Judge Facciola has sent a strong message to the agency that it needs to get its act together, look at the data and other available information, and take seriously the request by New England fishermen to move these ships out of groundfish sanctuaries.”

In issuing his opinion, Judge Facciola found that the agency did not address in any manner those points made by the MFA that the midwater trawl access to groundfish closed areas is based on an incorrect assumption, that current bycatch estimates are fundamentally flawed, and that the agency failed to provide a clear rational for its decision. Judge Facciola also recognized that there is more recent data and other significant developments since the MFA’s petition was filed in 2007 that bear on the accuracy of the bycatch estimates used by the agency.

“Atlantic herring do not have to be caught in such a destructive way,” said Warren Doty, Executive director of the Martha’s Vinyard/Dukes County Fishermen’s Association who filed a brief in support of the MFA. “Purse seines and fixed gear were used for years to supply enough herring for New England’s food and bait markets but these midwater trawlers have moved in and pushed everyone else aside. Now we’re all suffering because of them.”

In a related case settled last week, commercial fishermen from Cape Cod reached an agreement with NMFS requiring the agency to reconsider a loophole allowing for the dumping of unmonitored catch contained in new rules that herring midwater trawl ships must follow in order to fish in one of the groundfish closed areas southeast of Cape Cod. These new protocols otherwise require a federal fisheries observer onboard every midwater trawler entering the area to better document bycatch.

EarthJustice.org

New bill seeks to reduce toxic chemical exposure and ensure safety

July 23, 2010
Washington, D.C. — Congressmen Bobby Rush (D-IL) and Henry Waxman (D-CA) introduced a groundbreaking bill late yesterday to overhaul U.S. chemicals policy in the House Energy & Commerce Committee. The Toxic Chemicals Safety Act of 2010 is intended to overhaul the 1976 Toxic Substances Control Act (TSCA), which has failed to regulate chemicals in consumer products—even those that have known links to cancer, learning disabilities, asthma, reproductive disorders, and other serious health problems.

“This legislation will reduce chronic disease in this country, a burden that scientists have increasingly linked to toxic chemicals found in our homes and places of work,” said Andy Igrejas, Director of Safer Chemicals, Healthy Families, a coalition of 250 environmental and public health groups. “It will also give American manufacturers and retailers the tools they need to compete in a world demanding safer products. We applaud Chairman Rush and Chairman Waxman for leading the way.”

The House legislation would significantly strengthen public health protections from toxic chemicals. For the first time, the chemical industry would be required to demonstrate that chemicals are safe, rather than the EPA having to prove they are unsafe. In a major shift the legislation would require chemical manufacturers to provide basic health and safety information for all chemicals as a condition for them remaining on or entering the market and to make that information public.

Other elements of the legislation would require:
Chemicals to meet a health standard to enter or remain on the market.
EPA to identify and restrict the most toxic chemicals that build up in our food chain and in our bodies, such as brominated flame retardants.
Populations most vulnerable to toxic chemicals, including pregnant women, infants and children, and those living in environmental ‘hot spots’, to have extra protections from toxic chemicals.
EPA to rely on the National Academy of Sciences’ recommendations to incorporate the best and latest science when determining the safety of chemicals.

The bill, introduced in the House, follows a similar bill introduced in the Senate in April by Senator Lautenburg (D-NJ) called the “Safe Chemicals Act of 2010”. For the past three months Congressmen Rush and Waxman have been meeting with key stakeholders including industry representatives, health and environmental advocates and the EPA to come up with a balanced bill.

“Right now our nation is bearing the brunt of decades of lax to non-existent federal oversight and the harm to consumers is immeasurable,” said Congressman Rush in a recent article about the bill.

Just this year the President’s Cancer Panel reported that “the true burden of environmentally-induced cancers has been grossly underestimated.”

“Thanks to the leadership of Chairman Rush and Chairman Waxman, we are one step closer to the day when we can move about our daily lives without worrying about carcinogens and hormone disruptors lurking in our kitchenware, mattresses, and children’s toys,” said Earthjustice Vice President for Litigation Patti Goldman. “We hope their Congressional colleagues hastily get to work making that day a reality.”

“People have been led to believe that chemicals are proven safe before added to products we use every day, but the law doesn’t offer that protection,” said Igrejas. “This legislation gives EPA both the authority and a mandate to begin making up for 34 years of neglect. Congress should seize this opportunity immediately.”

EarthJustice.org

Need for further analysis of missing information tops reasons for halt

July 21, 2010
Juneau, AK — A federal court Wednesday afternoon ordered all activities under Lease Sale 193 in the Chukchi Sea off the north coast of Alaska halted pending further environmental review by the Bureau of Ocean Energy Management, Regulation, and Enforcement, formerly the Minerals Management Service.

The court determined that the agency failed to meet its obligation under the law to analyze the importance of missing basic scientific information about the Chukchi Sea and verify whether it could obtain the information prior to offering leases in the sea. The court also faulted the agency for failing to analyze the potential impacts of possible natural gas development from the lease sale. In light of today’s decision, Secretary Salazar should fundamentally reexamine the decision to offer leases in the Chukchi Sea.

Earthjustice represented the Native Village of Point Hope, City of Point Hope, Inupiat Community of the Arctic Slope, Alaska Wilderness League, Center for Biological Diversity, Defenders of Wildlife, National Audubon Society, Natural Resources Defense Council, Northern Alaska Environmental Center, Oceana, Pacific Environment, Resisting Environmental Destruction on Indigenous Lands (REDOIL), Sierra Club, The Wilderness Society and World Wildlife Fund in a challenge to the lease sale in federal court in 2008.

The Minerals Management Service approved oil and gas drilling leases in the heart of the Chukchi Sea without adequately analyzing the potential impacts of the sale. The court’s decision shines a spotlight on the need for adequate scientific data before opening sensitive areas of the ocean to risky oil and gas activities. The danger of committing our ocean to risky oil and gas activities without full environmental review is highlighted by the ongoing tragedy in the Gulf of Mexico.

The Chukchi Sea is home to sensitive populations of endangered polar bears, bowhead whales, and spectacled and Steller’s eiders, among many other species of fish and wildlife. The bounty of the Chukchi Sea is at the heart of the subsistence culture practiced by native Inupiat communities.

Despite the significance and sensitivity of the Arctic Ocean, there is a profound lack of basic knowledge about the sea and the wildlife that inhabits it. Data gaps exist on whale migrations and feeding habits. There is no reliable population estimate for species of walrus or seals. No population estimates for polar bears are available for the Chukchi Sea. Global climate changes are wreaking havoc on sea ice, upon which many species depend for survival. An oil spill on any scale in this sensitive and often harsh climate would have devastating impacts. No technology exists to clean up an oil spill in these Arctic waters.

Reactions on today’s decision

“This is an important decision directing the Secretary to consider the need for more information on the Chukchi Sea. We have long argued that more science, more data and more research is needed in the sensitive waters of the Arctic Ocean before oil and gas lease sales or drilling are allowed occur,” said Erik Grafe, an attorney at Earthjustice. “Federal agencies have a basic obligation under the law to fully assess missing information about potential impacts of their actions, and to obtain it if they can, before they act. In this case, the court decided that the Minerals Management Service did not meet its obligation before it issued oil and gas leases in the Chukchi Sea.”

“We are pleased with this decision. We hope Secretary Salazar will use this chance to fundamentally reconsider oil and gas leasing in the Chukchi Sea, our ocean and our garden. We hope the Secretary sees where we are coming from and honors his commitment to support tribes and our efforts to carry on the subsistence traditions of our elders. There is too much at stake to take shortcuts,” said Caroline Cannon, President of the Native Village of Point Hope.

“The past few months have taught us all a painful lesson about the risks of offshore drilling. An oil spill in the Arctic’s broken sea ice would be impossible to respond to. A spill would be the nail in the coffin for Arctic communities and wildlife like polar bears, which are already struggling to survive. And where there is offshore drilling, there are oil spills. This lease sale never should have happened. It was the product of the same broken system that led to poor oversight of BP’s drilling operations,” said Sierra Club executive director Michael Brune.

“This is a victory for both the Arctic environment and for the communities of Alaska’s North Slope. As it has been repeatedly demonstrated, and now reinforced by the BP tragedy in the Gulf, the Department of the Interior and the former Minerals Management Service has failed more often than not at providing the necessary oversight for decisions related to offshore oil and gas development,” said Carole Holley, Alaska Program Co-Director at Pacific Environment. “We are hopeful that the federal government will reconsider Chukchi Lease Sale 193, given the irreversible impacts associated with oil and gas activities in one of the most sensitive regions of the world.”

“The legal foundation for drilling in the fragile Chukchi Sea has crumbled at Secretary Salazar’s feet. With one coast of our country already irrevocably scarred by oil, it is time for the Obama administration to break with the bad decisions of the past and take drilling in the Arctic off the table permanently,” said Rebecca Noblin, Alaska director for the Center for Biological Diversity.

“The Arctic Ocean is one of the most productive but least understood biological regions in the world. This decision supports the widely recognized need for sound baseline science before moving forward with risky development in a sensitive region,” said Beth Peluso of Audubon Alaska.

“Today’s decision proves that the entire program for oil and gas development in the Arctic Ocean is completely flawed and that Lease Sale 193 must be canceled,” said Betsy Beardsley, Environmental Justice Program Director for Alaska Wilderness League. “As the people who have survived off the bounty of those Arctic waters for thousands of years have said from the beginning, the federal government has failed us by allowing risky plans for drilling to proceed. Now that this court and others have agreed, Interior Secretary Ken Salazar must now take the time to gather crucial information about this unique, fragile marine environment and ensure that the Arctic of the future remains a pristine, abundant place.”

“This decision halting new drilling in Alaska’s Chukchi Sea represents a great opportunity for the Obama Administration to take a new look at the risks of offshore drilling to our oceans, our coasts, and marine wildlife,” said Jamie Rappaport Clark, Executive Vice President of Defenders of Wildlife. “The Deepwater Horizon disaster in the Gulf has demonstrated clearly just how risky offshore oil drilling can be, and the risks in the remote and wild Arctic Ocean are simply too great to take.”

“We have had to go to court to force a conversation about the Arctic, the lack of baseline science, and response and rescue capabilities,” said Michael LeVine, Pacific Senior Counsel for Oceana. “Hopefully, now communities and others will have a seat at the table when these decisions are made about the Chukchi Sea.”

EarthJustice.org

Public should know about chemicals’ effect on the environment
July 14, 2010
Washington, D.C. — Earthjustice filed suit today against the federal government, seeking critical information about the chemical dispersants being used on the gushing Gulf of Mexico oil leak. The dispersants are being used in unprecedented amounts and no one knows what the immediate and long-term effects will be.

The lawsuit, filed on behalf of the Gulf Restoration Network and the Florida Wildlife Federation, challenges the Environmental Protection Agency’s failure to tell the public what the secret ingredients are in the chemical dispersants that the agency has deemed eligible for use in oil spills. The suit also seeks all health and safety information that the EPA has on the dispersants and their ingredients.

“We need to know more about these dispersants,” said Earthjustice attorney Marianne Engelman Lado. “Once we have more information on the ingredients, as well as what alternatives could be used, everyone involved, including workers, policy makers, and researchers, can make better, more informed decisions.”

The groups brought the lawsuit after the EPA failed to produce the information requested under the Freedom of Information Act on May 28. The EPA disclosed the secret ingredients of the two chemical dispersants used in the Gulf oil spill, but the agency has not released the other requested health and safety information.

“We’re trying to give the public essential information needed to understand the impacts of this oil spill and protect Gulf resources from more devastating damage,” said Cynthia Sarthou, Executive Director of the Gulf Restoration Network.

Well over 1 million gallons of dispersants have been used so far, and for the first time, dispersants are being applied under the ocean, where the oil is pouring into the Gulf.

The chemical ingredients in the dispersants are subject to the federal Toxic Substances Control Act. This law requires chemical manufacturers to submit health and safety studies that exist, the underlying data, and reports of potential adverse effects to EPA. Other federal law requires manufacturers of the dispersants to submit data on the toxicity and effectiveness of the dispersants. Today’s lawsuit seeks this very critical safety information.

“The public has a right to know what the dispersants being used in the Gulf will do to the Gulf—and to its wildlife,” said Manley Fuller of the Florida Wildlife Federation.

EarthJustice.org

Comprehensive legislation is needed to protect the health and sustainability of our oceans ecosystems as a whole

July 14, 2010
Washington, D.C. — Today, as oil gushes into the Gulf of Mexico for the eighty-fifth day, the House Natural Resources Committee will take an important step toward the critically needed overhaul of offshore drilling regulation as they mark up the Consolidated Land, Energy, and Aquatic Resources Act of 2010 (CLEAR Act). The CLEAR Act contains revisions to the oil and gas development process that are key to ensuring potential development in our oceans, especially in the fragile Arctic environment, takes place only after sound scientific review and careful environmental consideration. The bill would improve environmental review throughout the process, promote alternative energy development, and fully fund the Land and Water Conservation Fund, the Historic Preservation Fund, and the Ocean Resources Conservation and Assistance Fund. The Deepwater Horizon tragedy has spurred quick Congressional action on offshore oil and gas reform, and during this important time there are several provisions that are key to ensuring that in areas such as Alaska—home to some of our nation’s most unique and fragile natural treasures—the right decisions based on sound science are made before environmental damage is done.

The failures at Minerals Management Service, and their affects in the Gulf and Alaska, illustrate the need for an overhaul of the agency that allows science to guide the process. Ultimately, comprehensive legislation is needed to establish a new management system that protects the health and sustainability of our oceans ecosystems as a whole, rather than focusing primarily on the development of offshore oil and gas resources. The former MMS office in Alaska has repeatedly failed to analyze and disclose the effects of proposed offshore oil projects in Alaska—particularly in America’s Arctic Ocean.

The Government Accountability Office released a report earlier this year that shows that Alaska’s MMS office has long been plagued with a range of problems—from withholding key information from environmental analysis staff to the suppression or alteration of science on environmental issues.

“The BP spill in the Gulf has given all these problems a new urgency as we watch with horror what happens when oil companies are allowed to do as they please,” said Kristen Miller, director of government affairs for Alaska Wilderness League. “We must not move forward on making decisions about potential development in America’s Arctic until all lessons from the BP spill have been applied to our regulatory system, until oil spill prevention and response technology is proven on-the-ground for real world conditions, and until there is enough information in place to ensure that we can protect our nation’s only Arctic ecosystem.”

“As the BP disaster has shown us, offshore oil drilling remains a hazardous threat to our oceans and our coastlines,” said Jessica Ennis, Legislative Associate for Earthjustice. “We need caution, not carelessness, in any offshore drilling plan. Much more science is required before any plans to drill in the sensitive waters of the Arctic Ocean can proceed. Congress has a tremendous opportunity to step up environmental protections in the law and ensure that a tragedy such as that which occurred in the Gulf of Mexico never happens in our Arctic Ocean.”

In order to more fully address the problems that continue to plague the federal government’s oversight of offshore drilling in Alaska and elsewhere, Congress should make the following additional changes to current law as this process continues:
Congress should establish that basic scientific study and information should be completed before areas can be leased or drilled, something which is particularly important for places like the Arctic Ocean where major fundamental information gaps about the environment and affected species remain.
The law should be strengthened to ensure full compliance with the National Environmental Policy Act (NEPA) at all stages of the offshore process, especially in frontier areas such as the Arctic, in areas in which the new technology is being used, or in situations where there could be significant impacts to the ocean and coastal resources. The public should be able to review and comment on the agency’s proposed decisions and key agencies such as the Commerce Department must be given more meaningful opportunities to shape the environmental review.
The law should require that lease sales be small and specific enough to ensure that environmental effects can be more accurately assessed while still considering the greater ecosystem.
The law should clarify that, instead of a right to develop, as is sometimes asserted, offshore leases only give an exclusive right to oil companies to submit plans that could be approved if the companies can prove that they can drill without harming the environment. Changes should make clear that the Secretary can deny plans and cancel leases if companies cannot meet this standard, without having to pay exorbitant sums to oil companies.
The law should clarify that judicial review of the Secretary’s compliance with NEPA is available at the 5-year program stage, as it is at other stages of the OCSLA process.