Court rules that federal government is failing to protect critically endangered right whales

Endangered whales

Two courts issued rulings earlier this month protecting the critically endangered North Atlantic right whale, estimated to be made up of fewer than 366 individuals that migrate along the east coast of America.

On July 8, U.S. District Judge James Boasberg ruled that the federal government has violated both the Endangered Species Act (ESA) and the Marine Mammal Protection Act (MMPA) by failing to protect the North Atlantic right whale. The National Marine Fisheries Service (NMFS) is in charge of overseeing fisheries and must ensure that their operation will not jeopardize the continued existence of endangered species. Environmental groups sued, alleging that the agency has not done enough to protect the right whales from entanglement with lobster fishing gear. When right whales become entangled in fishing gear, they can drown immediately or die over an extended period from injuries, infections, or starvation.

“The Court agrees with the conservation groups,” Judge Boasberg wrote. “An estimated 2.69 entanglements per year leading to mortality or serious injury (M/SI incidents) for right whales are expected to occur in federal fisheries in 2022… Of these entanglements, 2.56 would occur from the trap/pot fisheries associated with lobstering and crabbing until 2025.”

The court’s ruling will force the National Oceanic and Atmospheric Administration to reformulate its plan to protect the species, which will likely include tougher regulations on Maine’s lobster industry.

The Court recognizes that this may seem a severe result for the lobster industry and NMFS. But no actor here — neither the Court nor the Service — operates free from the strict requirements imposed by the MMPA and ESA.

Days later, the 1st Circuit Court of Appeals reinstated a seasonal prohibition on lobster fishing using vertical lines in federal waters off the Maine coast in order to protect right whales. The lawsuit was brought by a group of Maine fishermen last year seeking to stop the closure. A District Judge agreed, preventing the NMFS from enacting the plan, and the government appealed.

Appellate Judge William Kayatta, writing for the three-judge panel, ruled in favor of closing the 967 square mile area (dubbed the LMA 1 Restricted Area):

We also do not doubt, though, that the loss of even one right whale caught in a thicket of trap lines in the LMA 1 Restricted Area would be irreversible. So, we reiterate…”the balancing and public interest prongs have been answered by Congress’s determination that the balance of hardships and the public interest tips heavily in favor of protected species.”…

Indeed, Congress instructed the Agency to “halt and reverse the trend toward species extinction, whatever the cost.”

Environmental justice

A nearly two-year-long investigation by the U.S. Department of Housing and Urban Development (HUD) found that Chicago is violating the civil rights of its residents by relocating polluting businesses to Black and Latino areas.

The investigation was sparked by a complaint about a city plan to move a metal-scrapping operation from its previous location in Lincoln Park, a 79% white community, to the minority communities in the southeast of the city. Locals and activists argued against the relocation, pointing to the disparities in health and socioeconomic outcomes between the two areas.

“Overall, Lincoln Park’s quality of life measures are better than the Southeast Side community areas,” said Kirsti Bocskay, an environmental health scientist for the Chicago Department of Public Health. “Compared to Lincoln Park, the Southeast Side community areas have shorter life expectancies and worse self-reported health.”

For instance, life expectancy in Lincoln Park is almost 81 years on average, compared with 74 in South Deering.

Following pushback from EPA Administrator Michael Regan, who called the city’s plan to move the business to an environmental justice community one “of the more egregious cases out there,” Mayor Lori Lightfoot halted the permit process until the city and EPA could evaluate the impact of adding another polluter to the already-polluted area.

However, HUD determined that the city should not have moved forward with the relocation in the first place:

The city didn’t listen to residents on the heavily industrial Southeast Side who argued that they couldn’t welcome another polluting industrial operation, HUD said.

“The city ignored key substantive concerns throughout the process,” the letter said. “Disparities in environmental burdens and their health effects were well known by the city and raised by residents and experts, yet the city took significant actions towards the relocation without considering how the relocation would exacerbate those disparities.”

Despite neighbors’ complaints prior to the Lincoln Park site’s closing in 2020, Emanuel’s and Lightfoot’s administrations both dismissed concerns from Southeast Side residents, according to HUD. “The city’s disregard for the Southeast [Side] residents’ concerns stands in contrast to the city’s receptiveness to the complaints of the Lincoln Park residents that the relocation aimed to address,” the HUD letter said.

If the mayor’s administration does not rework its unlawful land-use policies that discriminate against communities of color, HUD will revoke hundreds of millions in federal housing money from the city.

  • Further reading: “Confronting a Legacy of Environmental Racism on Chicago’s Southeast Side,” Nature Conservancy. “Environmental Justice in Chicago: It’s Been One Battle After Another,” NRDC.