The U.S. is Failing to Protect Rare Right Whales, Neighboring Countries Can Help
North Atlantic right whales are on the brink of extinction with only around 330 individuals remaining. The U.S. government’s inaction to address their biggest threats — deadly ship strikes and fishing gear entanglements — is paving the way toward irreversible loss. But it is not too late to save these critically endangered animals and a recent trade agreement may be the tool that drives change on the water.
The United States-Mexico-Canada Agreement, known as the USMCA, is a 2020 North American trade agreement that requires each country to enforce its own environmental laws. Specifically, the USMCA requires the U.S. government to effectively comply with, implement, and enforce its laws that protect North Atlantic right whales, including the Marine Mammal Protection Act, the Endangered Species Act, and the National Environmental Policy Act.
Last October, Oceana filed a Submission on Enforcement Matters with the USMCA Commission on Environmental Cooperation (CEC) stating that, despite these laws, the U.S. government has failed to protect this species. Our submission showed that the United States was not effectively enforcing its laws to prevent harm to right whales from shipping and from fishing. One of the main causes of harm to right whales is being struck by vessels that are moving too fast for the whales to avoid them. The National Oceanic and Atmospheric Administration (NOAA) and the U.S. Coast Guard have the legal authority to set speed limits to prevent this harm, but while NOAA did impose such limits on paper with its 2008 Vessel Speed Rule, neither NOAA nor the U.S. Coast Guard have effectively enforced that rule, which requires vessels to slow down to 10 knots in certain areas. Oceana’s report, Speeding Toward Extinction, found over 50% non-compliance in several mandatory speed zones between 2017 and 2020. Since 2008, the North Atlantic Right Whale Consortium identified 28 vessel strikes in U.S. waters.
Oceana’s submission also showed that NOAA and the U.S. Coast Guard are failing to enforce environmental laws to protect North Atlantic right whales from mortality and serious injury caused by entanglements in commercial fishing gear. NOAA has failed to properly examine the impacts of fishing on right whales during review under the National Environmental Policy Act (NEPA), which is a fundamental basis for needed protections. With the exception of a limited emergency rule issued to close a small area of the Massachusetts Bay to lobster and crab fishing for a mere 30 days, NOAA has also failed — for over a decade — to issue much needed emergency regulations to reduce North Atlantic right whale deaths and serious injuries to less than one per year, as required by the Marine Mammal Protection Act and the Endangered Species Act. Last but not least, there are documented fishing gear entanglements — over 15 between 2017 to 2021, yet there do not appear to be any civil administrative enforcement actions related to fisheries and North Atlantic right whales in the last 11 years.
After a review of the submission, on June 3, the CEC Secretariat decided to move forward with the first step in a two-step process to investigate. The CEC Secretariat determined that an investigation and report is warranted to review the following U.S. government failures to enforce environmental laws: (1) failure to enforce the vessel speed rule; (2) failure to conduct NEPA review for the fishing gear entanglement risk reduction rule in a manner required by the statute to consider reasonable alternatives and cumulative effects; (3) failure to issue sufficient emergency regulations as required under the Marine Mammal Protection Act and the Endangered Species Act; and (4) failure to enforce the Marine Mammal Protection Act and the Endangered Species Act to reduce fishing gear entanglements.
Now, a vote is pending with the CEC Council members. If two of the three CEC Council members vote in favor (e.g., Canada and Mexico), then the CEC can begin the investigation and a report detailing the United States’ failures to enforce its environmental laws to safeguard these critically endangered whales. Such an investigation of the significant gaps in enforcement will help identify ways to adequately protect critically endangered North Atlantic right whales from vessel strikes and fishing gear entanglements in U.S. waters. In addition, the CEC could facilitate greater collaboration and cooperation among the USMCA Parties to protect North Atlantic right whales along their entire habitat range in the Atlantic.
Time is running out to save critically endangered North Atlantic right whales. The next step is for the CEC Council members to vote on whether to proceed with the independent investigation and report detailing the U.S. government’s failures to enforce environmental laws to protect right whales. They have 60 working days to make this decision, meaning that they should vote in favor of this investigation before October 4th of this year. Ultimately, if these failures were successfully challenged under the USMCA by Canada or Mexico, the United States could face trade sanctions that incentivize action. It’s time to hold the United States accountable. We must uphold our own environmental laws to protect critically endangered North Atlantic right whales before they disappear forever.
