Regulatory disruption

Ivanka Trump pretending to be a scientist

It is not a surprise, but rather shocking how the current administration is eviscerating our national regulatory agencies, and doing it in what may appear to lay audiences as “sensible.”

The current arena is the Marine Mammal Protection Act (MMPA) and Endangered Species Act (ESA). In the same sort of twisted logic that frames “DEI” (Diversity, Equity, and Inclusion) as “racism against white heterosexual men,” the existing bills are being jerked around under the rubric of “scientific accuracy.”

For over 50 years the MMPA has proven to be the most successful Regulatory Act ever passed. The testimony to this is in both the recovery of so many whale populations (after 200 years of commercial whaling), and the fact that none of these populations have gone extinct. So why would you want to change that?

The foundation of the MMPA is that as humans industrialize the ocean, there will be unfavorable interactions with marine mammals. The gist of the effort is to anticipate those interactions and reduce mortalities to the greatest extent possible. So there are considerations for maintaining “Optimum Sustainable Populations” of the various impacted species under the rubric of “Potential Biological Removal,” or “PBR” – how many animals might be “taken” and still have the population recover.

So in addition to calculating the population densities, there are regulatory tools such as “Incidental Harassment Authorizations” for behavioral disruptions, and “Incidental Take Permits” for ‘permissible’ mortalities that will still maintain sustainable populations.

The calculations for the authorizations are somewhat arcane, and based mostly on expert advice of marine mammalogists who have expertise in the respective species in the subject area of concern.

The suggested “tweaks” are too numerous to detail here, but they include “scientifically accurate population counts” which are really not easily ascertained, and excluding protections if the number is “unknown” (because without a number, the “PBR” is impossible to calculate); ambiguating or excluding mortalities caused by things like habitat destruction, and replacing the regulatory definition of “serious injury” (an injury with a greater than 50 percent chance of death) with a statutory definition requiring a greater than 75% likelihood of death.

Nice guys…

If you want to get a more detailed description, NRDC has a deeper level of analysis; and once we critique the proposed changes, we’ll circulate our submission.

What we don’t know is whether this administration will pay any attention to all of our various comments. When I first got into this business, the National Environmental Policy Act (NEPA) stipulated that all public comments needed to be considered, and any revisions made to address the comments needed to be annotated in the final document.

NEPA has been significantly watered down since then, and we have not seen how the current administration has synthesized any of our comments this year – the revised 5-year offshore leasing plan, the Seabed mining request, and rescinding the word “Harm” from the Endangered Species Act. But dollars-to-donuts they will likely ignore the thousands of public comments, and the proposed revisions will need to be pounded out in court.