From Panama to the Netherlands – Sea Shepherd Legal on the Global Campaign Trail

Sea Shepherd Legal spent the past month on the campaign trail forging relationships with officials globally to protect marine wildlife and habitats.  These in-person meetings set the stage for a great start to 2016.  Here are a few of the highlights:

RESOUNDING SUCCESS IN PANAMA

Logo REDE LA MP AMBIENTAL

In November, SSL arrived in Panama for the Seventh Annual Congress of the Red Latinoamericana de Ministerio Público Ambiental (Latin American Environmental Prosecutors’ Network, or “the Red”).  The Red is a forum through which 300+ state and federal environmental prosecutors across Latin America share ideas and collaborate regarding effective methods to combat environmental crimes ranging from illegal logging to wildlife trafficking.

SSL’s goal in attending was to highlight the plight of the oceans and the critical need to develop and enforce marine protective laws throughout the region.  We received an overwhelmingly positive response, reflected in (1) an official declaration stating that Red is dedicated to working with SSL; and (2) the establishment of a marine subcommittee to help facilitate immediate and active collaboration between Red and SSL.

COALITION-BUILDING IN STRASBOURG, FRANCE

LOGO_Bern (3)

SSL participated as an official observer at the annual meeting of the Standing Committee to the Convention on the Conservation of European Wildlife and Natural Habitats (the Bern Convention).  The meeting was held at the Council of Europe’s Palais de l’Europe in Strasbourg.

photo bern ssl

Attending this meeting was key to SSL’s effort to leverage the Bern Convention to protect pilot whales and other small cetaceans.  These creatures are being brutally slaughtered each year in the Faroe Islands, a self-governing overseas administrative division of Denmark.  Pilot whales are listed in Appendix II of the Bern Convention.  As such, state parties, like Denmark, are required to heed the Convention’s prohibition against “all forms of . . . deliberate killing.”

Although Denmark entered a reservation to except the Faroes from the Convention’s reach, it is SSL’s position that the slaughter in the Faroes is nevertheless illegal.  Without a doubt, Denmark’s participation in the slaughter most certainly violates the Convention.  Toward that end, SSL met with representatives of multiple European Union member states and other Standing Committee members, garnering support for an action against Denmark.

KEEPING OCEANS ON THE COP 21 AGENDA IN PARIS

untitled (5)

Following the meeting in Strasbourg, SSL headed west to attend Oceans Day and other events at COP 21 in Paris.  We were both pleased and disappointed by what we experienced.

The primary event we attended was Oceans Day – a forum designed “to advance the oceans and climate change agenda at COP 21 and beyond.”  We listened to multiple world leaders speak about how climate change impacts our oceans, livelihoods and small island states.  Some leaders, including the Prince of Monaco and President of Palau, provided examples of efforts underway to mitigate these impacts.  We were pleased by the awareness, but were disappointed by the following glaring incongruities:

Talking the talk, but not walking the walk  .  .  .

Again, this was the OCEANS DAY forum.  So, what are some of the biggest threats to ocean health?  Climate change, overfishing, and plastics pollution.  Yet, what did the event organizers serve to the participants?

  • Plastic water bottles and plastic cups!  Not only does the production of plastic exacerbate global warming, but a huge amount of plastics from water bottles end up in our oceans.  With 200+ attendees at Ocean Day (not to mention the 40,000+ attendees at COP 21 as a whole, who also were served plastic), just imagine the potential impact.

 plastic at cop21

Stats at a glance: Meeting the annual demand for bottled water in the United States alone requires more than 17 million barrels of oil annually, enough to fuel 1.3 million cars for a year.  Less than ¼ of plastic water bottles are ever recycled.  Notably, the recycling process also produces greenhouse gases. Why use them?  Why serve them?    

  • Fish and chips!   This is not a joke.  Fish and chips were top menu items for purchase at the Oceans Day event.  It seems obvious that If we want to protect our oceans, we need to decrease demand.  Decreasing demand on our oceans was never mentioned at the Oceans Day event.

fish n chips

Stats at a glance: Marine fisheries are collapsing around the world.  Approximately 85% of global fish stocks are over-exploited, depleted, fully exploited, or in recovery from exploitation.  Scientists warn that we may be the last generation to harvest wild-caught fish in significant numbers. Despite these trends, global demand for fish continues to rise, with per-capita consumption now four times higher than it was in 1950.

  • Hamburgers and sliced meats!  Hamburgers were one of the first things to sell out at the Ocean’s Day café, while complimentary samplings of salami and other sliced meats were passed around to registered participants (to go along with wine served in plastic cups).  Surely, everyone knows by now that the production of livestock contributes significantly to climate change. 

feedlot

Stats at a glace: It is estimated that animal agriculture is responsible for 18 percent of greenhouse gas emissions, more than the combined exhaust from all transportation.  Cows produce 150 billion gallons of methane – a potent greenhouse gas – per day.  Emissions from agriculture are projected to increase 80% by 2050.

SSL commends the organizers of COP 21 for focusing an entire day on oceans, and for using sustainable products in some aspects of the Paris climate summit.  In the future, we hope to work with organizers to ensure that events we attend are planned in a mindful manner that lessens the impact on marine wildlife and environments.

Oceans- Deserving of a full-day forum, yet merely a passing thought in the final climate agreement 

At COP 21, SSL pushed for due respect for oceans in the new climate agreement.  The agreement took on multiple iterations throughout its development – many of which failed to even include the word “oceans.”  This despite the fact that the world’s oceans provide 50% of our oxygen and absorb 1/3 of our CO2 emissions.  Concerned about the progress of the agreement, SSL circulated an emergency petition to ensure that oceans remain a focus of the landmark agreement.

Ultimately, the word “oceans” at least made it in the preamble, where the Parties “not[ed] the importance of ensuring the integrity of all ecosystems, including oceans, . . . when taking action to address climate change[.]”

As a colleague reminds us, “the word game is the long game.”  Even if oceans are not included in the operative provisions of the agreement, the preambular language is meaningful and pregnant with potential.  SSL will do everything it can to make the most of this clause.

COLLABORATING WITH OUR SEA SHEPHERD COMRADES IN THE NETHERLANDS

ss amsterdam

Our trip would not have been complete without a campaign trail stop at the Sea Shepherd Global headquarters in Amsterdam.  SSL is dedicated to upholding the overarching mission of Sea Shepherd to “end the destruction of habitat and slaughter of wildlife in the world’s oceans in order to conserve and protect ecosystems and species.”

SSL is developing multiple legal campaigns that complement the amazing work of the superheroes at Sea Shepherd Global.  Together, we look forward to a strong and successful 2016!   Stay tuned for future blogs and publications.

Please donate to support our work to protect marine wildlife and ecosystems – visit our secure donation link at www.seashepherdlegal.org.  

EMERGENCY ACTION ALERT FROM COP 21

Tell your country’s climate negotiator to put oceans back in the COP 21 Climate Agreement!

Just today — on COP 21 Oceans Day — climate negotiators chose to take oceans out of the forthcoming climate agreement.

Protecting our oceans, which provide 50% of our oxygen and the majority of our water in the water cycle, and absorb 1/3 of our CO2 emissions, is CRITICAL FOR CLIMATE CHANGE MITIGATION AND ADAPTATION!

Please contact your negotiator (for the U.S., that is Todd Stern to whom you can send a message through brooks-lasurem@state.gov) to demand that the oceans and ocean protection stay in the climate agreement.

We are circulating a petition here at COP 21 as well.

SSL Works to Improve the Marine Mammal Protection Act

In our last post, we shared some of the alarming statistics regarding bycatch of marine mammals in global fisheries.  This week, we describe what we are doing about it.

In 1972, Congress passed the Marine Mammal Protection Act (MMPA).  Just as it had with the Clean Water Act—also passed in 1972—the Congress of that era designed the MMPA to respond aggressively to the destruction of nature.  To that end, the MMPA prohibits the “taking” of marine mammals in U.S. waters and by U.S. nationals abroad, as well as trade in parts or products.  With a notable exception —the killing of sea lions, ostensibly to protect endangered salmon runs (more on this in a future post) —this moratorium has been a consistent bulwark against the intentional killing of marine mammals in U.S. waters or by U.S. nationals.

 

mmpa40th_logo (2)

So far, so good.  But what about incidental killing and other forms of non-intentional take?  Does the MMPA contain any provisions addressing problems?

Answer:  Yes.  When Congress enacted the MMPA, it recognized bycatch as a major threat to marine mammals.  Accordingly, Congress included language requiring U.S. fisheries to drastically reduce bycatch.

In addition, given the amount of foreign-caught seafood sold in the U.S., Congress included a provision requiring similar bycatch performance by foreign fisheries importing to the U.S. Unfortunately, for want of implementing regulations, that provision has collected dust for over 40 years.

The good news:  The National Marine Fisheries Service (NMFS) has finally proposed a rule to implement the import provision of the MMPA.  More good news: on its own initiative, NMFS also added a prohibition on intentional killings in foreign fisheries. This inclusion is significant because it would not make sense to place restrictions on bycatch mortality without also prohibiting the intentional removal of marine mammals.

The bad news:  The rule is far too forgiving and builds in opportunities for abuse by irresponsible fisheries.

To address these shortcomings, SSL has filed extensive comments with NMFS encouraging the agency to adopt a stronger rule consistent with the spirit and text of the MMPA.  The following excerpt contains a summary of SSL’s major arguments:

The United States plays host to one of the world’s largest seafood markets. In 2013, the U.S. imported approximately 2.5 million metric tons of “edible” fishery products, valued at $18 billion.[1] These numbers are just the latest in a trend of increasing seafood imports. This market share gives NMFS incredible leverage to protect marine mammals affected by foreign fisheries. NMFS is finally proposing a rule to apply this leverage.

Although SSL applauds NMFS for proposing this rule—and finds several aspects of the rule worthy of praise—the contemplated provisions fall short in several ways. First, with its five-year grace period, the rule stumbles out of the gate. Marine mammals are left helpless for half a decade while exporting nations—many if not all of which could comply in short order—are given a free pass. The carnage is then compounded by NMFS’ generosity in verifying continued compliance only once every four years.

Second, the proposed rule takes only a half-step toward eliminating the intentional killing of marine mammals. NMFS allows exporting nations to continue to intentionally kill marine mammals in commercial fishing operations (e.g. the Scottish practice of sniping seals in salmon farms) so long as they are able to segregate fish products destined for the U.S. This will be both difficult to police and of no benefit to the marine mammals that continue to be killed for export to other markets (with, it should be noted, the blessing of NMFS).

Third, the proposed rule disregards the precautionary principle in abandoning the “Zero Mortality Rate Goal,” which requires the reduction of incidental mortality or serious injury of marine mammals in the course of commercial fishing operations to insignificant levels approaching zero—a goal central to the MMPA’s conservation purpose. In its place, the rule substitutes an approach that focuses exclusively on the maximum number of individuals that can be killed without compromising the viability of the population as a whole—the Potential Biological Removal rate (PBR). Significantly, the accuracy of the PBR-based approach is only as reliable as the underlying data supporting it. Moreover, PBR only accounts for direct human-caused mortality of marine mammals. Thus, even if rigorously applied (which is doubtful given the vagaries of data collection and analysis on an international scale), the PBR-based approach fails to account for harmful indirect effects on marine mammal populations and other effects such as climate change.

Fourth, the proposed rule is weakened by its provisions governing comparability findings.  Boiled down to the essentials, under these provisions, if a foreign fishery yields more marine-mammal bycatch than allowed under U.S. law (thus, not “comparable”), products from that fishery are not allowed to enter the U.S. market.[2]  A positive comparability finding, on the other hand, unlocks the door to the U.S. market. If NMFS is too quick to hand out the key, then the whole scheme is for naught. Unfortunately, the proposed rule comes dangerously close to doing just that. In addition to completely overlooking illegal, unreported, and unregulated (IUU) fishing (both as a proxy for weak enforcement of bycatch limits and for bycatch directly associated with IUU operations), the regulation as written calls for NMFS to assess comparability on the basis of suspect information, including untrustworthy data from Regional Fisheries Management Organizations and distorted calculations of PBR. Indeed, the proposed rule even goes so far as to authorize a comparability finding where a nation has done none of the following: (1) conduct a marine mammal stock assessment; (2) estimate bycatch; or (3) calculate a bycatch limit. The MMPA commands NMFS to assess comparability on the basis of “reasonable proof.”[3]

Fifth, by failing to cover highly-processed fish products (like fish sauce and fish sticks), the rule contains a gaping hole. NMFS appears to believe that it would be too difficult to identify feedstock fisheries. However, NMFS offers no facts to back up this hunch, and the agency’s position is contradicted by the rule’s proposed approach to intentional-kill fisheries. If exporting and U.S. authorities are capable of distinguishing between salmon accompanied by intentional kills and salmon free of intentional kills, they should also be capable of policing the fisheries that feed into sauces and sticks. In any case, nothing in the statute allows this exception.

Finally, the proposed rule inappropriately authorizes partial certifications under two circumstances. First, it envisions a situation where a nation could have two or more fisheries for the same species, but where only one of those fisheries receives certification. Despite the obvious potential for intermixing—fraudulent and innocent alike—NMFS provides nothing in the way of safeguards. Second, NMFS would allow an intermediary nation (in the supply chain) to receive fish from a banned fishery and then export the same species of fish to the United States —and NMFS would do so without (again) articulating any concrete measures to prevent intermixing.

In sum, while the proposed rule represents a step in the right direction, it does not go far enough. The rule falls short of the basic requirements of the MMPA, all while creating major channels for what should be unlawful importation, opportunities for abuse, and a false sense of security. Marine mammals and the American public deserve better.

[1] NOAA Fisheries, Imports and Exports of Fishery Products, Annual Summary, 2013, available at http://www.st.nmfs.noaa.gov/commercial-fisheries/foreign-trade/index.

[2] MMPA, Sec. 101(a)(2).

[3] MMPA, Sec. 101(a)(2)(A).

*****

Help support our work to improve the MMPA and other conservation laws by making a tax-deductible donation.