Ealr, Volume 36, Number 2

Boston College Environmental Affairs Law Review Volume 36 Number 2 20-Ton Canaries: The Great Whales of the North Atlantic Introduction Symposium Articles Current Issues Facing North Atlantic Right Whales and Stakeholders Dr. Michael J. Moore [pages 309–318] Abstract: At the beginning of the Symposium sessions at the Massachu- setts Institute of Technology and at Boston College Law School, Dr. Mi- chael Moore provided a narrative and photographic introduction to current threats to whale survival, with particular reference to North At- lantic waters off the eastern coast of the United States and the most endangered whale species, the North Atlantic right whale, Eubalaena gla- cialis. The conditions experienced by North Atlantic right whales reflect conditions faced by all the great whales of the North Atlantic. Given the 1935 absolute moratorium on hunting right whales in any waters, there are three major areas of current concern for whale conservation and survival noted in Dr. Moore’s presentation and addressed in legal terms by subsequent contributors to the Symposium: (1) entanglement in commercial fishing gear; (2) vessel strikes; and (3) ambient and episodic marine noise. Each of these is generated by human activities on the oceans. Antarctic Whaling: Australia's Attempt to Protect Whales in the Southern Ocean Donald K. Anton [pages 319–352] Abstract: This Article examines Australia's attempt to protect whales in the Antarctic Southern Ocean, in an area that almost all states consider beyond national jurisdiction. Such an examination is important because of the apparently intractable divide on the issue in the International Whaling Commission. The Article begins by outlining the evolution of the Australian cultural and legal posture toward whaling. It also sets out current Australian whaling law, including the establishment of the Austra- lian Whale Sanctuary in the Exclusive Economic Zone of the Australian mainland and external territories (including the purported Australian Antarctic Territory in the Southern Ocean). The Article then analyzes how municipal litigation has been deployed as a protection strategy in Australian courts by NGOs in an attempt to protect whales in the Antarc- tic Southern Ocean. The Article then turns attention to significant legal limits and problems connected to this strategy. Finally, the Article con- cludes by highlighting the benefits and costs associated with the unilateral Australian legal approach in the Southern Ocean. Beyond Winter v. NRDC: A Decade of Litigating the Navy’s Active SONAR Around the Environmental Exemptions Robin Kundis Craig [pages 353–388] Abstract: To find ultra-quiet modern submarines, the Navy uses high- powered active sonar. However, active sonar is also linked to marine mammal strandings and other types of harms to whales, dolphins, fish, and sea turtles. This connection has led to over a decade of challenges against the Navy’s active sonar training exercises in the Pacific, culminat- ing in the U.S. Supreme Court’s November 2008 decision in Winter v. Natural Resources Defense Council. This Article suggests that the Supreme Court’s failure to reach the merits of the case—the actual legality of the Navy’s training exercises off the southern California coast—is the most troubling part of the Court’s somewhat cabined analysis of the lower courts’ preliminary injunctions. Specifically, this Article argues that the Navy sonar litigation represents a progressive elimination both of flexibil- ity in the applicable environmental requirements and effective oversight of military actions that could ensure that neither national security nor environmental goals are unnecessarily sacrificed. Policy Considerations and Measures to Reduce the Likelihood of Vessel Collisions with Great Whales Jeremy Firestone [pages 389–400] Abstract: Both globally and along the North American east coast of the Atlantic Ocean, reported ship strikes of great whales have been at historic highs during the past fifteen years. Ship strikes present a particularly grave threat to the North Atlantic right whale, given its severely depleted population status and the fact that right whales live, breed, and raise their young in areas that are heavily used by massive commercial vessels that travel at lethal speeds. Fortunately, decreasing the possibility of lethal strikes is not complicated—seasonally slow down vessels to ten knots and/or re-route them around those areas where right whales are known to aggregate. Here I describe the plight of the right whale and a series of scientific studies that can, and in some instances have, been used to facili- tate legally defensible and common sense government measures to protect great whales. Whales, Whaling, and the Warming Oceans Alison Rieser [pages 401–430] Abstract: In its first campaign of ocean diplomacy for the twenty-first cen- tury, the United States is trying to save the international whaling regime from breaking apart over the issue of commercial whaling. On the as- sumption that a reformed whaling regime could address the challenges whales face due to global warming, negotiators have come closer to a compromise than any previous attempt. But any effort to maintain a role for the International Whaling Commission (IWC) must not undermine the application by other regimes of new international norms, which in- clude protecting the integrity and resilience of marine ecosystems. A compromise that does not repudiate the “whales-eat-our-fish” notion un- derlying the IWC’s current view of the ecosystem approach will hinder progress in other ocean governance institutions whose need for reform greatly surpasses that of the IWC. Symposium Essays A New Paradigm for Conservation of Great Whales in the Urban Sea of the United States—Species in Need of a “Green Knight” Richard Max Strahan [pages 431–482] Abstract: The great whales of the North Atlantic live, breed, and are now being injured and killed in the “Urban Sea” —a growing feature of the United States coastline resulting from coastal development. The primary threats to great whales are anthropogenic: vessel strikes and entanglement in commercial fishing gear. Despite their popularity as cultural icons, and federal and state protective regulations on the books, endangered whales increasingly suffer collateral damage from coastal commerce. Ample law and technology exist to eliminate these problems. Rather than advancing the protection of whales, however, government agencies and some non- profit organizations have aggravated the problem through their lack of meaningful action. This essay examines systemic reasons why harmful en- tanglements in commercial fishing gear continue to occur and are likely to go on unabated into the future. The essay then proposes a paradigm shift for approaching these problems that will protect whales and will also bene- fit other wildlife in the ocean and its coastal Urban Sea. A Multi-Faceted Approach Is Necessary to Protect Endangered Species: A Case Study of the Critically Imperiled North Atlantic Right Whale Regina Asmutis-Silvia [pages 483–496] Abstract: While protection of endangered species in the United States is mandated for listed species under the Endangered Species Act and the Marine Mammal Protection Act, both require ancillary efforts to ensure their intents are enforced. Science, negotiation, litigation, and lobbying for political solutions are all tools that can be brought to bear to ensure compliance with protective laws. However, there is a right and wrong time for the use of each of these tools. This paper provides a short discussion of the available tools, the likelihood of success or failure of each depend- ing on when and how they are used, and it makes the case for a multi- faceted approach to protection of endangered species, using critically endangered right whales as a case study. Notes The Timing of Challenges to Compel Critical Habitat Designation Under the Endangered Species Act: Should Courts Toll the General Federal Statute of Limitations? Matthew D. Crawford [pages 497–534] Abstract: The Secretary of the Interior, acting through the Fish and Wild- life Service, is directed by the Endangered Species Act to designate critical habitat concurrently with the listing of a species as endangered or threatened. However, the ESA allows FWS to delay critical habitat designation upon a finding that designation is not prudent or that it is not determinable. FWS has liberally exercised these exceptions to avoid desig- nating critical habitat for the majority of listed species. In response, citizen groups regularly file suit to compel designation. Difficulties arise when the failure to designate occurred more than six years before the filed action. Some federal courts hold the general civil statute of limitations, 28 U.S.C. § 2401(a), bars actions to compel designation. Others have relied on principles of equitable tolling to allow actions to go for- ward. This Note argues that courts should toll the statute of limitations in actions to compel designation where FWS made a “not determinable” finding because it constitutes a failure to act despite a non-discretionary, mandatory duty, but that “not prudent” findings constitute final agency action and should start the clock running for statute of limitations pur- poses. Trans-Atlantic Reach: The Potential Impact of the European Union’s New Chemical Regulations on Proof of Causation in U.S. Federal Courts Leslie E. Kersey [pages 535–570] Abstract: On June 1, 2007, a new set of regulations governing nearly all chemical substances took effect throughout the EU's twenty-seven mem- ber states. The primary goal of the legislation, called REACH, is to im- prove the protection of human health and the environment from risks posed by toxic chemical exposure. No equivalent federal legislation ex- ists in the United States. As a result, chemicals that the EU will soon ban or restrict under REACH will continue to enter American homes and workplaces. This Note explores how private law—particularly in the form of toxic tort litigation—may fill the gap in U.S.

Load more