After a year and a half of delay orchestrated by several White House offices, the highly endangered North Atlantic right whale in October 2008 finally received critical protections from collisions with large ships. A UCS investigation revealed that during the drafting and approval of this rule, scientists at the National Marine Fisheries Service (NMFS) endured unprecedented assaults on their key scientific conclusions by executive branch political appointees with no scientific training. While the final rule did confer important new protections onto the whale, it still bore the hallmarks of political interference.
Protections for a species near extinction
The North Atlantic right whale is the second most critically endangered large whale species and one of the world's most endangered mammals, having been severely depleted by commercial whaling. Despite protections from whaling since 1935, populations linger between 300 and 400 individuals. The species is listed as endangered under the Endangered Species Act (ESA) and depleted under the Marine Mammal Protection Act.1
The greatest current threats to right whale recovery are entanglement in commercial fishing gear and collisions with ships, as their migration route from breeding to feeding grounds runs the gauntlet of crowded East Coast shipping lanes. The NMFS has said “no mortality or serious injury for this [whale] can be considered insignificant” and that each death, particularly those of breeding females, contributes to the extinction of this species.2
On June 1, 2004, the NMFS began a process to draft new rules under authority of the ESA which would reduce the occurrence of ship strikes. These rules would implement seasonal speed limits for large vessels around East Coast ports, since the best available science indicated that right whales were more likely to evade or survive a collision if the ship was moving slowly.3 When this rule-making process entered its final stages in February 2007, several offices in the White House sought to delay the issuance of a final rule by challenging the scientific underpinnings of the regulation.
Political interference from the White House
As is required by the federal rule-making review process, the NMFS submitted for review its Final Rule to Implement Speed Restrictions to Reduce the Threat of Ship Collisions with North Atlantic Right Whales to the White House Office of Management and Budget (OMB) on Feb 20, 2007. The rule was finally issued on Oct 10, 2008,4 over a year and half after its legal release deadline had passed.
During that long delay, at least three executive branch offices with no scientific expertise conducted a biased sensitivity analysis by cherry-picking data, questioned the data underlying the proposed rules, and challenged the conclusions made by NMFS biologists. Because White House and interagency reviews of pending regulations are not open to public scrutiny, uncovering these systematic challenges to the scientific conclusions of NMFS scientists required a combination of anonymous interviews and leaked government documents.
Biased sensitivity analysis
In July 2007, the White House Council of Economic Advisors (CEA), an executive office which advises the President on budgetary matters, challenged the conclusion that there was a significant increase in right whale deaths as vessel speed increased from 10 to 14 knots. The CEA emailed biologists in the US and Canada to obtain raw data in order to construct its own database on collision mortality.5 Their intent, according to internal NMFS documents, was to “investigate the reliability of analysis in the published literature on which [NMFS] is basing its position.”6
CEA used this data, in conjunction with data from the NMFS, to conduct a “sensitivity analysis” in which they “changed the coding on a few data points to observe how the model responded.”7 This recoding generally consisted of changing the “fate” of the whale involved in a collision (i.e., from “serious” to “not serious”), contrary to the expert determination of NMFS scientists. This non-random selection and alteration of specific data points does not follow any accepted methodology for testing robustness of a scientific model.8
CEA then used this analysis to argue that the relationship between vessel speed and whale mortality is sensitive to the interpretation of a few data points and is therefore not as strong as NMFS claimed.9 CEA further suggested, contrary to the published literature, that there was no statistically significant difference in the probability of whale mortality in a collision with a vessel moving at 10 knots versus 14 knots. NMFS scientists defended their conclusions against the scientifically indefensible position of CEA in several meetings and in a memorandum which concluded that the CEA analysis was “biased.”10
Up to and throughout November 2007, the NMFS and its parent agency, the National Oceanographic and Atmospheric Administration (NOAA) repeatedly responded to objections to the scientific justifications of the speed restriction rule. Among these challenges:
- A NOAA memo said that the Office of the Vice President “contends that we have no evidence (i.e. hard data) that lowering the speeds of 'large ships' will actually make a difference. NOAA replied that all observational data and statistical modeling supported the conclusions that vessel speed is the most significant factor in determining the fate of a whale involved in a collision, and thus there is “no basis to overturn our previous conclusion.”11
- Two more documents, to the White House12 and the Council on Economic Quality,13 show that NOAA fielded a series of questions debating the scientific data on the rate of whale calf births, the distribution of whales from the shore, and the reliability of the observed geographic distribution of whale sightings.
- NOAA defended the implication that their regulation covered an overly broad region of the East Coast. Where the White House questioned the impact of reducing the size of protected areas around mid-Atlantic ports, the NMFS replied that moving these boundaries closer to shore would result “in a rule that is less protective of right whales and increases the legal vulnerability of the rule.”14
- Additionally, NMFS scientists repeatedly had to defend their finding that ship speed is the most important factor in whale collisions for all ship sizes, even the largest vessels.15
A weakened final rule
After an unprecedented delay, growing public and congressional scrutiny16 combined with rigorous scientific defense by the NMFS scientists helped protect many, but not all, of the initial rule’s conclusions. While it is impossible to directly connect the objections raised by the White House to changes made to the final ship strike rule, the protections for the North Atlantic right whale were weakened in the published regulation. The most significant changes to the new rule, issued Oct 10, 2008, were:
- Reducing the protected area radius around mid-Atlantic ports from 30 nautical miles to 20 nautical miles,
- Changing, from mandatory to voluntary, the compliance required for short-term speed restricted zones which would be dynamically issues around whale sightings, and
- Issuing a 5-year sunset clause on the rule, which will require NMFS scientists to re-do most of their analysis to attempt to reissue the rule in a few short years.17
These changes are less protective for the species and were intended to mitigate the impact on industry. In particular, the sunset clause shifts the burden from the regulated industry to prove that their business conduct is not endangering the right whale, and instead forces the NMFS to repeat the long rule-drafting process. The North Atlantic right whale lives for 50 years or more, and females do not begin bearing calves until approximately their tenth year, so it is extremely unlikely that the positive effects of this rule on whale populations could be adequately assessed in five years.18
Improved right whale protection
NOAA regularly updates and releases both enforced and suggested ship speed restrictions, based on areas that are highly populated by right whales. Since the final ruling from the White House in 2008, restrictions require vessels 65 feet or longer to move at 10 knots or less in specific areas, minimizing the probability that the ships will collide with whales1. NOAA has provided maps and guides with areas to be avoided and traffic separation schemes, which outline routes for fishing vessels to minimize collisions with North Atlantic right whales. Despite these initiatives, whale deaths unfortunately continue, with a right whale death documented in February 2011.
These tragedies reiterate the need for further protections in order to prevent entanglements in fishing gear and collisions with ships. The fight for policy change is being paralleled by efforts to protect the whales through the Ship Strike Reduction Strategy, an initiative headed by the NOAA Fisheries’ Office of Protected Resources2. Composed of both regulatory and non-regulatory components, the initiative consists of operational measures for vessels, outreach programs, technological research, and international protection agreements.
1. U.S. Fish and Wildlife Service. Regulatory Profile: Right whale (Balaena glacialis).
2. Stock Assessment, 12; National Oceanographic and Atmospheric Administration (NOAA), Advanced Notice of Proposed Rulemaking for Right Whale Ship Strike Reduction, 69 Fed. Reg. 30857 (June 1, 2004).
3. Vanderlaan, Angelia S.M. and Taggart, Christopher T. 2007. Vessel collisions with whales: The probability of lethal injury based on vessel speed. Marine Mammal Science 23:144-156. Also Pace, RM and Silber, GK. 2005. Simple analyses of ship and whale collisions: Does speed kill? [Abstr,; oral pres.] Prepared for: Sixteenth Biennial Conference on the Biology of Marine Mammals, San Diego, CA. Dec 12-16, 2005. np.
4. NOAA Fisheries Service. 2008. Final rule to implement speed restrictions to reduce the threat of ship collisions with North Atlantic right whales. 73 FR 60173. 10/10/2008.
5. Emails between CEA staff and whale biologists. Redacted version available upon request.
6. NOAA Fisheries Service. 2007. Response to CEA analysis of vessel speed vs whale ship strikes. Leaked document.
9. Comparison between NOAA conclusions of the relationship between ship speed and whale mortality to CEA's analysis. Full CEA analysis available upon request.
10. NOAA Fisheries Service. 2007. Response to CEA.
11. NOAA Fisheries Service. Ship Strike Rulemaking. Oct 2007. Leaked document.
12. NOAA. Responses to 16 November Questions from the White House on Right Whale Ship Strike Reduction Final Rule. Leaked document.
13. NOAA. Response to CEQ Question about Right Whales and Ship Strike Reduction. November 14 2007. Leaked document.
14. NOAA Responses to 16 November Questions.
15. Internal emails leaked to the author. August 2007. Redacted versions available upon request.
16. Committee on Oversight and Government Reform. Chairman Waxman releases internal administration documents, calls for right whale protections. April 30, 2008.
18. This article is based on material first presented by McCarthy, M. & Grifo, F. T. 2008. Delays in Protections for the North Atlantic Right Whale. Poster presentation, December 9. National Council for Science and the Environment, 9th National Conference on Science, Policy and the Environment, Washington DC.