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Playing politics with science spawns new threat to endangered whales

Trump administration ignores warnings about disturbing North Atlantic right whale to relax rules for oil exploration

Scientists at the National Oceanic and Atmospheric Administration warned that blasting air guns in an area where a rare whale migrates and gives birth could push it closer to extinction. But those findings conflicted with the Trump administration’s push for drilling in the Atlantic Ocean, so the scientists were ordered to change their official conclusions so the agency could permit air guns to sound off in the whales’ territory.

Documents obtained by CQ Roll Call show that science-based measures to protect the endangered North Atlantic right whale from seismic surveys in the Atlantic Ocean were watered down after being vetted by NOAA’s “political team.”

“It really is important that the general public as well as members of Congress understand the unraveling of science that’s happening right now. We’re well on the way to losing it, even at NOAA,” says Rep. Jared Huffman, a California Democrat who chairs the House Natural Resources Subcommittee on Water, Oceans and Wildlife.

He accused the administration of “committing blatant scientific and environmental malpractice at the highest order.”

Critics like Huffman point to potentially dire consequences if NOAA’s independent science is undermined.

The agency is seen by the global scientific community as the gold standard for research on meteorology and marine biology. Even as President Donald Trump and members of his Cabinet cast doubt on climate science, the agency continues to issue warnings about increasingly severe hurricanes, droughts and wildfires that scientists link to record-setting high temperatures.

If such government warnings lose credibility, lives and property could be unnecessarily lost. Farmers might not be prepared for water shortages driven by drought. Fishermen could be vulnerable to dramatic supply shortages caused by warming oceans.

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Career scientists at NOAA are among a cadre of professionals at agencies like the EPA and Interior Department whose independent science has conflicted with the Trump administration’s political interests.

In “Sharpiegate,” for example, Trump last September incorrectly tweeted that part of Alabama would be “hit much harder than anticipated” by Hurricane Dorian. After the Alabama office of the National Weather Service tweeted that Alabama would not be impacted by the hurricane, Trump doubled down and displayed a NOAA map of Dorian altered with black marker to change the storm projections.

But critics say the administration’s political influence is more pronounced at the National Marine Fisheries Service, informally known as NOAA Fisheries, which regulates aquaculture such as fishing and water for agriculture and is responsible for protecting federally endangered and threatened marine life. They charge the agency is ignoring science to let seismic airguns hurt, injure and potentially kill endangered whales and other species on the verge of extinction.

The Trump administration unabashedly touts deregulation as a way to help the economy, as well as its efforts to protect the environment. In 2017, for example, a White House statement highlighted NOAA’s efforts “to free our fishermen from burdensome red tape while also promoting responsible fishing practices.”

Mounting pressure

Tim Whitehouse, executive director of nonprofit watchdog Public Employees for Environmental Responsibility, says his group has communicated with current and recently retired NOAA scientists who say political officials are trying to “overtly politicize the work of the agency” despite “strong resistance” from career staff.

There is “more and more pressure on NOAA scientists to come up with answers that please political leadership,” says Whitehouse.

Environmentalists point to NOAA Fisheries’ decision in November 2018 to give five seismic exploration companies permission to “incidentally” disturb endangered species with airgun blasts from the coast of Delaware to waters off Cape Canaveral, Fla.

The surveys, which have yet to begin because the Interior Department is still processing permits, could have dire consequences for the North Atlantic right whale and other whales and dolphins.

To search for oil and gas deposits, companies conduct what are known as seismic surveys, in which ships tow large airgun arrays blasting acoustic waves into the seabed every 10-20 seconds.

These pulses can mask whale calls used to find food and mates. At certain distances, the sound can irreparably damage a whale’s hearing, what experts liken to a hand grenade exploding within earshot.

Source: National Marine Fisheries Service (Jason Mann/CQ Roll Call)

Scientists say warming seas are forcing the North Atlantic right whale further north for food, straight into fishing areas and shipping lanes. Airguns would make survival even more precarious.

The threat of these blasts stems from a broader effort by the Trump administration to streamline endangered species regulations in ways that benefit fossil fuel companies and other commercial interests. Last year, the Fish and Wildlife Service and NOAA Fisheries finalized landmark changes to the nation’s endangered species regulations, including removing a prohibition on economic factors being considered when protecting species under the Endangered Species Act.

The Bureau of Land Management has also relaxed restrictions on development on sage grouse habitat and pushed ahead with oil and gas leasing in the Arctic National Wildlife Refuge.

The records obtained by CQ Roll Call demonstrate “weakening a protection,” says Scott Kraus, a former chief scientist at the New England Aquarium and 40-year veteran of whale and dolphin research.

“It’s entirely possible that the policy people at NOAA are trying to please this administration by saying they’re open to the idea of doing exploration in this area,” Kraus said after reviewing the documents.

NOAA Fisheries has experienced political pressures in the past, but it is abnormal for scientists’ recommendations for endangered species protections to be altered after a political review, says Andrew Rosenberg, a former Northeast regional administrator at NOAA Fisheries who now serves as director of the Center for Science and Democracy at the Union of Concerned Scientists. 

The scientists’ assertions, detailed in a report known as a biological opinion, are supposed to ensure a proposed action (in this case, seismic surveys) will not jeopardize the continued existence of an endangered species. In this instance it seems “political pressure was brought to bear and the political appointees sought a compromise,” Rosenberg says.

“These measures are not modified at a political level. They aren’t political considerations,” he says.

NOAA Fisheries declined to comment on the “political team” that screened the scientists’ claims or whether such a review was normal practice. In a statement, NOAA Fisheries spokesman John Ewald said the seismic survey protections were based on “extensive scientific, regulatory, stakeholder and public input.”

“Over the course of two years, NOAA carefully used the best available science to develop mitigation measures these companies must follow to minimize impacts on all potentially affected marine species,” Ewald said in a Feb. 14 email.

Unrealized potential

Why all the interest in seismic surveys in the Atlantic Ocean?

The answer is simple and one that 19th century whalers could appreciate: the prospect of cashing in on a potentially untapped resource that could help feed a global addiction to oil.

Between 1976 and 1983, companies drilled 51 wells in different areas of the Atlantic, but none went into production, according to the Bureau of Ocean Energy Management, which oversees oil and gas leasing in federal waters.

The last surveys for oil and gas potential off the East Coast concluded in 1983 and found the Atlantic held only a small percentage of the nation’s undiscovered offshore oil and gas potential. But the fossil fuel industry believes the survey data relied on outdated technology and didn’t include large swathes of the ocean. 

The International Association of Geophysical Contractors, a trade group representing companies that map the ocean’s floor, has called for new surveys to ensure the government gets fair market returns on leasing bids for well sites — and so oil and gas companies know where to purchase new leases.

“Our surveys will provide that understanding. The need is pronounced,” former IAGC chairman Robert Hobbs told lawmakers at a House Natural Resources Committee hearing in April 2015.

Momentum for new surveys in the Atlantic picked up in 2008, after Congress dropped a decades-old appropriations rider blocking offshore oil and gas leasing off the East Coast.

In 2010, Congress instructed the Bureau of Ocean Energy Management to determine whether it could approve surveys of the Atlantic for mineral potential. Four years later, the agency concluded that it could permit some new oil and gas exploration with certain protections in place for endangered whales and other sea creatures. IAGC members began to apply for permission to map different parts of the ocean.

NOAA Fisheries needed to authorize the activity’s potential impact on endangered marine species and had not signed off. Before it could issue a decision, President Barack Obama in 2016 ordered a permanent ban on oil and gas leasing in parts of the Atlantic and Arctic oceans. 

Just days before Trump took office, the bureau rejected the survey applications, citing the ban and the potential harm that seismic surveys could inflict on sea creatures.

The value of obtaining new information with airguns did “not outweigh the potential risks of those surveys’ acoustic pulse impacts on marine life,” said then-BOEM Director Abigail Ross Hopper in a statement.

The fossil fuel industry wanted the bureau’s decision overturned as soon as possible. 

Shortly before Trump’s inauguration, the National Ocean Industries Association, a trade group whose board includes executives from Exxon Mobil Corp., BP PLC and Halliburton Co., submitted a wish list to the president’s transition team. The list, obtained by liberal watchdog American Oversight with a Freedom of Information Act request, called on the government to “immediately” reconsider the exploration companies’ applications and highlighted NOAA Fisheries as the “chief” barrier to seismic surveys getting government permits.

“Without updating decades-old data in the Atlantic, we continue to blindly assess resource potential and make uninformed decisions,” the list stated.

In April 2017, Trump signed an executive order seeking to drastically expand offshore drilling. The order called on BOEM and NOAA Fisheries to expedite consideration of seismic survey applications. Within months, they were both reconsidering the seismic survey permits and analyzing their impact on endangered marine species.

The rush to expand offshore drilling has been slowed some in the past two years by lawsuits from environmental groups and states concerned about the risks. Last year, a federal judge in Alaska ruled Trump’s offshore drilling order was illegal, saying presidents cannot reopen waters their predecessors ruled off-limits from development. The administration has appealed that ruling.

Meanwhile, just last month a federal judge in South Carolina denied a Trump administration request to dismiss the state’s lawsuit seeking to prohibit seismic surveys off its coast.

And the House in September passed three bills (HR 205, HR 1941, HR 1146) to ban drilling in the Gulf of Mexico off the coast of Florida and in U.S. waters of the Arctic, Atlantic and Pacific oceans. The Gulf ban was backed by 22 Republicans and the Atlantic/Pacific ban had a dozen GOP supporters. All three bills are pending in the Senate, where both of Florida’s Republican senators, Marco Rubio and Rick Scott, are opposed to drilling off the state’s coast.

The NOAA ‘political team’

In June 2017, NOAA Fisheries published proposed whale protections for the surveys. By winter the division’s biologists saw a problem: The protections for the North Atlantic right whale were too weak and put airguns in their direct path. 

The agency had proposed a seasonal ban on using airguns up to 47 kilometers (about 29 miles) from shore between November and April, when the whales were known to migrate and give birth along the mid- and south-Atlantic coast.

But peer-reviewed research led by a NOAA Fisheries analyst concluded the whales were traveling farther from shore than ever before — and directly into the path of the proposed survey activity. A draft report for the Navy reached a similar conclusion.

Taking these studies into account, the biologists prepared a draft opinion stating the agency needed to ban surveys out to 90 km (about 55 miles) from shore, documents obtained by CQ Roll Call show.

Source: National Marine Fisheries Service (Jason Mann/CQ Roll Call)

The seasonal closure would “drastically reduce the number of North Atlantic right whales that would be exposed to seismic activity,” the biologists wrote.

But two of the companies seeking to do the surveys, TGS-NOPEC Geophysical Co. and CGG, objected to the size of the protected area and opposed using the draft Navy study. In letters sent Feb. 8, 2018, to NOAA Fisheries, the companies said the draft Navy study could not be used because it had not been peer reviewed, its authors acknowledged changes might be made, and it used a “novel” methodology.

The lead author on the Navy study, Duke University scientist Jason Roberts, defended his research and said the seismic survey companies had not communicated their concerns with him.

He says the report used the same methodology as a peer-reviewed paper on North Atlantic right whale sightings he published in a journal the previous year. And after the Navy report was subject to its own peer review, its findings did not change.

“I did not actually anticipate any changes happening through peer review and that kind of statement which is in there [the report] is a little bit like a boilerplate precaution that we always have to assert in science,” Roberts says.

The companies also objected to a number of other protections recommended in the draft report, including a requirement that seismic airguns shut down when a North Atlantic right whale and other protected whales are spotted within 2 km (about 1.2 miles).

CGG said in its letter the agency should scrap the protection because there “is not enough scientific evidence to justify the basis for the species shutdown requirements.” If the agency wanted to include the requirement, a “feasible and effective” alternative would be reducing the distance to 1 km (about .6 miles).

Gail Adams, vice president for communications and external affairs at the International Association of Geophysical Contractors, says companies applying for permits under the Endangered Species Act are allowed to request copies of draft opinions and provide comments. The agency is required by law to consider this feedback, Adams says.

“By requesting a copy of the draft biological opinion and providing comments on it, TGS and the other applicants were merely following the procedures provided for by federal law. There was nothing unusual or unlawful about IAGC members doing so,” Adams says.

Emails obtained via FOIA show that in March 2018, NOAA Fisheries biologist Benjamin Laws wrote a TGS project manager to say the agency was in the “homestretch” of making its final decision on the surveys. Two months later, Laws cautioned the representative that he couldn’t “offer any timelines” until a legal review was completed.”

On June 27, Laws told TGS the matter was submitted for “policy review” earlier that month by “the NOAA political team.” He had received “no communication from them since then” and wrote that he didn’t want to discuss the agency’s final action “until we know whether they will direct that changes be made.” 

“So, it’s entirely out of our hands, but we will let you know as soon as we have anything to report,” Laws said.

Two months later, Laws told TGS there had “still been no communication from NOAA.”

“This is the NOAA political team and unfortunately we have no way to try and request any update or so forth. We certainly hope that this will be resolved soon but don’t know what to expect at this point,” he wrote.

On Oct. 12, 2018 — more than four months after the biologists’ opinion was kicked up to the political team — Laws emailed its lead author, NOAA Fisheries biologist Eric Patterson, informing him of “two minor changes” that resulted from NOAA’s review. That email was provided to CQ Roll Call by the Southern Environmental Law Center, which obtained it in an ongoing lawsuit challenging NOAA Fisheries’ approval of the seismic surveys.

Laws told his colleague the report would be changed to allow NOAA Fisheries to shrink the seasonal closure area to 47 km from shore if the seismic companies submitted plans “sufficient to achieve comparable protection for North Atlantic right whales.” And the whale spotting distance for shutting down airguns would reduce to 1.5 km, a “compromise” with NOAA’s “suggested” distance of 1 km, he wrote.

Kraus, a biologist who worked on the NOAA research cited in the opinion, says these changes were anything but minor and at odds with the underlying science.

There is “no way in hell” the companies could comparably protect the whales with the alternative protections because airguns create a “huge amount of sound going out many tens of kilometers [that] is like throwing sticks of dynamite off the back of a ship,” he says. 

“On mitigation of that sound, there’s almost no way to do it,” he says. The sound itself might not kill the whales, but it could lead to their demise.

“What you’re going to do is elevate the noise levels in that area to the extent you mask sounds from mothers and calves,” Kraus says. “If females and calves cannot find each other, the calf will die.”

The report was finalized on Nov. 28, 2018, with the two changes. Two days later NOAA Fisheries announced it would clear the seismic companies to encroach on the whales and other protected marine species.

Ewald, the NOAA Fisheries spokesman, said the changes were scientifically justified.

Addressing the alternative whale protection area, Ewald said the agency considered “the possibility that surveys could occur in the region between 47 and 90 km from shore” but would only allow them if a mitigation plan “would result in protection of the right whale comparable to that afforded by the closure.”

A mitigation plan would need analysis under multiple environmental laws and could only be approved if NOAA Fisheries found it did not result in additional whale deaths, Ewald said in his February email.

“Please note that [NOAA Fisheries] does not offer guidance on what technology or techniques might be expected to achieve the outcome necessary for a plan to be approved,” he said.

Growing concerns on the Hill

Congress is just becoming aware of how NOAA Fisheries has been politicized under Trump, says Rep. Huffman, who along with Natural Resources Chairman Raul M. Grijalva, an Arizona Democrat, is investigating whether political officials interceded in a similar NOAA Fisheries opinion on California water flows.

Last July, a draft report prepared by NOAA Fisheries said increasing water delivered to California’s Central Valley would put endangered salmon and steelhead trout in jeopardy, as well as the Southern resident killer whale, which feeds on the fish. Then officials at the Interior Department stepped in, and when the final report was released on Oct. 22, it concluded the government could let more water flow and protect the fish at the same time.

The Democrats want to know if Interior Secretary David Bernhardt, a former lobbyist for a California water district that benefited from the report’s ultimate conclusion, meddled in government science to help his former client and fulfill a promise Trump made to Central Valley farmers in 2016 that if elected, he would be “opening up the water” for them. The Interior Department has denied Bernhardt was involved with the report.

There are still experts at NOAA dedicated to maintaining high standards of scientific integrity, Huffman says. The problem is “well above their pay grade,” he says.

Climate stewardship, he says, “is one of those things that you just look to NOAA, maybe more than any other agency, for leadership.” And that leadership, he suggests, is not stepping up.

“Even in hearings where we talk about things that are squarely involving climate change, they don’t speak as candidly as they used to. There’s sort of a hushed tone.”

As Huffman and others investigate potential political meddling at NOAA Fisheries, the fight over protecting the North Atlantic right whale from airguns is playing out in the courts.

After NOAA Fisheries approved the surveys, Alan Wilson, the Republican attorney general of South Carolina, joined with national environmental groups to sue the agency to overturn the decision. If the judge finds biologists at NOAA Fisheries changed their conclusions despite the best available science, he could say that signing off on the exploration was illegal. 

Such a ruling would set back Trump’s efforts to let oil and gas companies drill in the Atlantic.

“You’ve got one of the world’s most endangered species involved, so you’d think it’s a time to be true to the science,” says Catharine Wannamaker, an attorney with the Southern Environmental Law Center, in a recent interview. “You would hope science will prevail over politics here.”

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