Turn Down the Volume: Improved Federal Regulation of Shipping Noise Is Necessary to Protect Marine Mammals

By Harris, Benjamin A. | UCLA Journal of Environmental Law & Policy, Fall 2017 | Go to article overview

Turn Down the Volume: Improved Federal Regulation of Shipping Noise Is Necessary to Protect Marine Mammals


Harris, Benjamin A., UCLA Journal of Environmental Law & Policy


I. INTRODUCTION II. BACKGROUND       A. Ocean Noise Can Be Highly Disruptive to Marine          Mammals       B. Anthropogenic Ocean Noise Pollution Is Abundant       C. Mitigation of Shipping Noise Is Feasible            1. Geographic Mitigation            2. Source-Based Mitigation            3. Operational Mitigation III. FEDERAL STATUTORY AUTHORITY OVER MARINE      MAMMALS      A. Marine Mammal Protection Act          1. Relevant MMPA Provisions and Regulations          2. Treatment of Shipping Noise under the MMPA          3. Role of Advocates under the MMPA: Is              Massachusetts v. EPA a Feasible Basis for              Suit?      B. Endangered Species Act          1. Relevant ESA Provisions          2. How Shipping Noise Is Treated under the ESA          3. Potential ESA Litigation Against Shipping             Noise      C. National Environmental Policy Act         1. Relevant NEPA provisions         2. Treatment of Shipping Noise under NEPA IV. RECOMMENDATIONS FOR ADVOCACY      A. Lobby Agencies to Engage in Rulemaking or Issue          Guidelines Regarding Noise from Shipping          Vessels      B. Lobby Congress to Impose Binding Mitigation          Measures for All Shipping Vessels      C. Advocate for an Amendment to the MMPA to Adopt          a Citizen Suit Provision V. CONCLUSION 

I.

INTRODUCTION

Marine mammals across the world face numerous threats from human activities. Historically, whaling and harvesting dramatically reduced populations of many species, some to the point of extinction. (1) While direct extractions are no longer as significant, mammals are still routinely caught as bycatch of fishing activities or found entangled in fishing nets or other manmade debris. (2) Ships often collide with marine animals, which results in serious injuries and mortalities. Together, these threats place significant stressors on the survival of many depleted marine mammal populations.

Noise pollution from anthropogenic activity is increasingly being recognized as a serious concern for the health and survival of marine mammals. (3) The most harmful acoustic noises, originating from high-frequency active sonar, have recently caused numerous events of mass mortalities and strandings on beaches for marine mammals with sensitive hearing. (4) This has generated important public outcry and increased awareness of the need to silence our oceans from acutely harmful noises.

However, less attention has been directed toward the constant droning produced by other anthropogenic sources of noise, including shipping activities. Although it does not cause acute physical harm, this form of low-frequency noise can have adverse behavioral repercussions for marine mammals occupying habitat in the vicinity of populated shipping traffic lanes. (5) In many cases, these behavioral impacts may be detrimental to the survival and prosperity of key marine mammal populations. Shipping noise is a widespread and significant source of noise pollution throughout the world's oceans. (6) Numerous federal tools exist to regulate noise impacts from the shipping industry, yet to date they have largely gone unused by the administering agencies or the general public.

This paper analyzes the deficiencies of three federal statutes that can be used to regulate marine mammals and provides recommendations for advocacy positions that can overcome the current limitations in applying these laws to regulate shipping noise. Section II provides background information about the scientific literature regarding behavioral impacts from anthropogenic noise, the extent of noise pollution generated by the shipping industry, and available mitigation measures to reduce the effects of that noise on marine mammals. Section III describes key provisions in the Marine Mammal Protection Act ("MMPA"), the Endangered Species Act ("ESA"), and the National Environmental Policy Act ("NEPA"), documenting how shipping noise is currently treated under those statutes and analyzing the potential avenues for advocacy under the current regime for each law. …

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