White House Delays Attempts to Protect North Atlantic Right Whale
The North Atlantic right whale is one of the most critically endangered species on Earth, but a rule intended to reduce fatal collisions between ships and whales lies buried under layers of delay orchestrated by offices in the executive branch, including the Office of the Vice President. Internal documents anonymously provided to the Union of Concerned Scientists show that these agencies have effectively delayed the rule for nearly a year and a half by repeatedly challenging well-supported scientific conclusions showing that slowing down ships around ports during specific times of the year will prevent ships from striking whales.
Only about 300 right whales remain on the east coast, and their numbers are primarily threatened by fatal collisions with ships and entanglement in fishing gear. [1] Ship strikes have caused at least 19 right whale deaths since 1986, with more suspected but unconfirmed. [2] According to the National Marine Fisheries Service (NMFS), a branch of the National Oceanic and Atmospheric Administration (NOAA), "no mortality or serious injury for this [whale] can be considered insignificant" and that the death of even a single whale, particularly a breeding female, "may contribute to the extinction of the species." [3]
As part of its efforts to protect the remaining individuals of the species, NMFS proposed a rule to implement a 10-knot speed limit in a 30 nautical mile radius around Atlantic ports and coastal areas during the seasons of right whale feeding, migrating, and reproducing. [4] After an extensive, thorough, and transparent four years of drafting, the NMFS sent its final rule to the White House Office of Management and Budget (OMB) for review on Feb 20, 2007. [5]
Under the executive order authorizing the OMB to review regulations, the OMB must complete its rule within 120 days—90 days plus a 30 day extension—a time period which expired on June 20, 2007. [6]
Internal documents obtained by UCS show that since that time, the OMB, the Council of Economic Advisers (CEA), and the Office of the Vice President (OVP) have all been involved in a campaign to discredit the science underlying the rule, with the goal of delaying, weakening, or burying the rule entirely.
- Documents show NMFS employees replying to unfounded attacks from the OVP, where, despite the scientific record supporting the rule, OVP staff "contends we [NMFS] have no evidence (i.e. hard data) that lowering the speeds of large ships will actually make a difference." [7]
- The CEA, the White House's office for economic analysis and advice, [8] inappropriately extended themselves into reanalyzing the raw scientific data underlying the ship strike rule. [9] UCS has obtained a copy of that analysis and compared it with NMFS analysis. [10]
The council's staff, which has no expertise in either the right whale or scientific modeling, re-coded a non-random selection of data points and concluded that the relationship between whale mortality and ship speed is not as strong as suggested by career scientists and independent, peer-reviewed publications. The CEA went on to question the choice of 10 knots as a speed limit. NMFS analyzed the new analysis and concluded it was "biased" and "unlike any formal sensitivity analysis NMFS biometricians are familiar with." [11]
- The NMFS fielded at least one other round of questions from the White House, this time questioning calf birth data, the impact force required to kill a whale, and the decision of 30 nautical miles as the radius around points of concern. [12]
While the White House plays politics with this measure to slow down ships, the overall fight to protect whales from collisions continues. The Coast Guard has recently been ordered by a federal Court of Appeals to review the impact of shipping traffic lanes on the whale. [13] The combination of carefully designed shipping lanes and slower moving ships will help reduce one of the primary causes of mortality for this extremely endangered animal, as long as the rules can proceed in a process that is open and accessible to all stakeholders and based on the best available science. With the speed reduction rule lost in the black box of White House review, it is unclear whether the right whale will receive the protections it needs before it is too late.
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[1] NOAA Fisheries – Office of Protected Resources. North Atlantic Right Whales (Eubaleana glacialis) webpage.
[2] NOAA. Proposed Rule to Implement Speed Restrictions to Reduce the Threat of Ship Collisions with North Atlantic Right Whales. 71 FR 36299, 36300. June 26, 2006.
[3] Stock Assessment, 12. NOAA. Advanced Notice of Proposed Rulemaking for Right Whale Ship Strike Reduction. 69 FR 30857. June 1, 2004.
[4] NOAA. Proposed Rule to Implement Speed Restrictions to Reduce the Threat of Ship Collisions with North Atlantic Right Whales. 71 FR 36299, 36300. June 26, 2006.
[5] Office of Information and Regulatory Affairs (OIRA). EO 12866 Regulatory Review – Search results for Department of Commerce.
[6] Executive Order No. 12866. 58 FR 51734. Oct 4, 1993.
[7] NOAA. Response to the Office of the Vice President – Ship Strike Rulemaking (pdf). Oct 2007.
[8] The White House Counsel of Economic Advisers.
[9] NOAA. Response to Council of Economic Advisers’ (CEA) Analysis of Vessel Speed vs. Whale Ship Strikes (pdf). July 31, 2007.
[10] Appendix III. Side by side comparison of NMFS analysis of right whale mortality vs ship speed with the CEA analysis of the same thing. Available as Appendix III in Francesca Grifo’s written testimony before the U.S. House of Representatives Natural Resources Committee. May 2008.
[11] NOAA. Response to Council of Economic Advisers’ (CEA) Analysis of Vessel Speed vs. Whale Ship Strikes (pdf). July 31, 2007.
[12] NOAA. Responses to 16 November Questions from the White House on Right Whale Ship Strike Reduction Final Rule (pdf). November 20, 2007.
[13] Fahrenthold, David A. Whale advocates gain victory – Decision declining to order review of ship traffic is overturned. The Washington Post. July 19, 2008.
