Playing Shell Games with Sea Turtles
Sea turtles, despite the best efforts of conservationists, are still in peril; all seven species are listed under the Endangered Species Act. The most at risk is the Kemp's ridley, which has about 7,000 nesting females, down from 42,000 in 1947.
But things would be still worse if not for the National Environmental Policy Act, which mandates the assessment of any federal action that could harm sea turtles - or, for that matter, any species. Unfortunately, the National Marine Fisheries Service, through a recently proposed draft rule, is now trying to subvert not only the spirit but possibly even the letter of the law.
The agency has proposed doing away with environmental impact statements on federal fisheries management actions. And through a series of loopholes, the proposal gives unreasonable power to fishery management councils - the advisory groups comprised largely of representatives of the commercial and recreational fishing industries. These councils often do not prioritize the health of the ocean environment - especially the fish, birds or turtles they accidentally catch and kill, but cannot sell.
NEPA requires that federal agencies consider - though not necessarily follow - less damaging alternatives to current practices, and prepare an environmental impact statement to evaluate the broader environmental and economic impacts of each option. Just as importantly, NEPA gives the public a chance to have its say by commenting on government decisions regarding the management of our public resources.
When NEPA is enforced, it works well. In 2000, for example, Judge David Ezra issued a court order that closed a swordfish fishery because the National Marine Fisheries Service had not prepared the evaluation required by NEPA, and the fishery was accidentally killing many marine turtles in the West Central Pacific.
When the agency did prepare the statement, it determined that using certain kinds of hooks and modified bait techniques would not affect the number of swordfish being caught, but would reduce the number of sea turtles being hooked and drowned on fishing lines. After the modified gear was in place, the fishery was allowed to reopen.
In place of this tried and true system, the fisheries service proposes a new type of environmental review process, with watered-down planning requirements that would allow fishing interests to decide how much information about the impacts of a proposed fishery management action should be studied and reported to the public for comment. The draft rule would even give industry the power to decide what information is "significant" and would specifically restrict discussion of issues deemed insignificant.
The government's proposed rule also shortens the minimum period for public comment on an environmental impact statement from 45 to 14 days. Under current law, this can only be shortened with the approval of the White House's Council on Environmental Quality or the Environmental Protection Agency. But no outside review or approval would be required to reduce public comment on the proposed new process.
Furthermore, the draft NEPA rule prohibits the public from commenting on the potential environmental impact of a proposed fishery management decision unless the same concerns had been raised earlier. This restriction holds true even if the part of the final fishery management proposal the public finds objectionable was not included in initial draft documents released to the public.
Public comments are more than just the passing thoughts of people stopped on the street during one of Jay Leno's famous "Jaywalking" segments. The ability of citizens to provide direct input to government officials about the potential impacts of proposed actions is at the core of an open society and a fundamental right in a healthy democracy. And for decades, NEPA has been an invaluable tool in ensuring that we, the public, have a say about the possible impact of federal government action that could affect our lives, our resources and our environment.
The National Marine Fisheries Service had a real opportunity to draft a rule for the application of NEPA that would better protect our ocean resources. Instead, it has come up with an extraordinarily complicated proposal that would take the power to protect marine life - inherently public resources - such as sea turtles, out of the hands of the public and turn it over to the fishing industry.
Rather than weakening efforts at conservation, the agency should withdraw this ill-conceived proposal and start over.