Ecojustice Blog – Nature Posted on September 4, 2014 (updated: February 17, 2015)

U.S. Court win for endangered killer whales stands

Margot VentonLawyer

Whales rely on their hearing to survive in the dark ocean environment. That’s why Ecojustice and our clients take noise pollution in whale habitats seriously.

And that’s why we’re celebrating some good news from south of the border this month: A U.S. Court decision that requires the National Marine Fisheries Service (NMFS) to reconsider its biological opinion on the impacts of naval activity will stand.

Earlier this month, the NMFS withdrew its appeal of the decision, meaning it can get down to the work of properly evaluating how navy testing impacts at-risk marine mammals. The NMFS is now required to consider the impacts of naval testing over a longer time frame and — among other things — the cumulative impact of years of naval noise on whale hearing.

Navy testing, which includes the use of explosives and sonar, can disrupt marine mammals like whales and dolphins. The loud sounds can scare them from an area and harm their hearing. Whales and dolphins have adapted to survive in the vast expanse of darkened ocean through their highly evolved ability to hear and communicate over long distances. If they can’t hear, they can’t survive.

Five species of whales are found in the area where the naval testing at issue takes place: the southern resident killer whale, and the humpback, blue, fin and sei whales. All five are transboundary species, meaning that the whales and their habitat cross the border between Canada and the U.S. All five are also listed under Canada’s Species at Risk Act.

Ecojustice lawyers helped the Georgia Strait Alliance, Wilderness Committee, David Suzuki Foundation and Raincoast Conservation — organizations long-committed to conserving Canada’s marine species — appear as friends of the Court (or amicus curiae). We helped these groups provide the Court with information about Canadian efforts to protect these whales, including the only legal protection for acoustic quality of the marine environment, a result of our successful resident killer whale lawsuit.

We are pleased by this turn of events, and look forward to seeing the NMFS’ revised biological opinion in August.

Not the only threat

Unfortunately, naval testing is just one source of noise pollution degrading the marine environment’s acoustic quality. It’s estimated that underwater noise levels in the world’s oceans have increased an average of 15 decibels during the past 50 years, largely as a result of increased shipping traffic. It’s no surprise then that increased traffic along tanker routes that cross through whale habitat continues to be a pressing concern in Canadian waters, especially with proposed projects like Enbridge’s Northern Gateway and Kinder Morgan’s Trans Mountain pipeline expansion on the table.

The Northern Gateway tanker route overlaps with important humpback whale breeding and feeding areas along B.C.’s north coast while tanker traffic through the Burrard Inlet and Strait of Georgia from Kinder Morgan’s Westridge terminal intersects with the critical habitat of the southern resident killer whales.

We’ve been working within the regulatory process for these pipeline projects to ensure the threat they pose to whale habitats are considered and addressed. The Kinder Morgan review is currently underway and Federal Cabinet’s decision on Northern Gateway is expected mid-June.
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