Seafood Source | 13 June 2022

Oceana filing under USMCA on right whales moves forward, could open US to trade restrictions

By Chris Chase

A filing made by non-governmental organization Oceana claims the U.S. is not holding up its environmental laws regarding the protection of endangered North Atlantic right whales is moving forward.

In October 2021, Oceana filed the first-ever Submission on Enforcement Matters against the U.S. government, made under the United States-Mexico-Canada Agreement (USMCA). Signed into law 2019 by then-President Donald Trump, the agreement replaced the North American Free Trade Agreement – which governed free trade between the U.S., Mexico, and Canada for two decades.

With the USMCA came a number of new mechanisms, including the Commission for Environmental Cooperation (CEC). Under the USMCA agreement, a person or organization can file a “Submission on Enforcement Matters” with the CEC if one of the three countries are not sufficiently enforcing its own environmental laws.

Under its filing, Oceana claims multiple U.S. government entities – including the National marine Fisheries Service, the NOAA Office of Law Enforcement, NOAA Office of General Counsel, the U.S. Coast Guard, and the Bureau of Ocean Energy Management – are failing to uphold the country’s environmental laws to protect the highly endangered North Atlantic right whale from vessel strikes and fighting gear entanglements. Currently scientists estimate that just a few hundred whales remain in the wile.

Now, as of 3 June, the secretariat has officially determined the submission “warrants the preparation of a factual record,” the next step in the Submission on Enforcement Matters process. Under the step, the factual record, a type of investigative report, is created documenting the “environmental, legal, and/or public health aspects of the situation,” according to the CEC.

“We applaud the CEC Secretariat for taking the first step in the USMCA process to hold the United States accountable to protect critically endangered North Atlantic right whales,” Oceana Campaign Director Whitney Webber said in a release. “It’s clear that the U.S. government is failing to uphold its own environmental laws to protect North Atlantic right whales from its top threats, and Oceana will continue to use all available tools to force action. There’s no time to waste; now that we have passed this first step, we encourage the CEC Council Members to vote yes to start the investigation at their July meeting to help save North Atlantic right whales from extinction – before it’s too late for these majestic whales.”

Following the decision, the next step is a vote by the environment ministers for each country on whether or not a formal investigation should be pursued. If the vote is approved, an investigation that could take up to six months to complete will commence.

Oceana Fisheries Campaign Director Gib Brogen told SeafoodSource that part of the motivation behind the Submission of Enforcement is to generate the factual record, “which we’re hoping is going to be an in-depth investigation about the regulations that are in place, and the way that the U.S. government is enforcing those regulations,” he said.

“We are hoping that the CEC as an international body will provide feedback and an evaluation of how effective those regulations are, and that the U.S. is not fulfilling its obligations,” he said.

In response to Oceana’s initial submission, the U.S. informed the secretariat of the CEC that multiple aspects of the issue are “part of ongoing litigation in various federal district courts,” a press release by the CEC states. The National Marine Fisheries Service, for example, has already been sued by the Center for Biological Diversity, Conservation Law Foundation, and several other groups that claimed the American lobster fishery is violating the Endangered Species Act. That litigation, which is still ongoing, had an initial ruling by U.S. District Judge James Boasberg that determined the lobster fishery is violating the Endangered Species Act.

For its part, NOAA Fisheries created new rules to limit lobstering, rules which have also been the subject of lawsuits from organizations representing lobstermen.

The CEC secretariat, according to the CEC, found that while some of the matters in Oceana’s decision were subject to lawsuits, “others warrant preparation of a factual record.”

“The CEC Secretariat concluded that a factual record could provide information on United States’ efforts to effectively enforce the Vessel Speed Rule by bringing civil and criminal enforcement actions for violations of the rule and could also consider the potential for emergency regulations to protect the NARW [North Atlantic right whale],” the CEC said.

The investigation, Brogan said, could always end up finding that the U.S. is fulfilling its obligations.

“That’s absolutely a possibility, yes,” he said. “We believe that a transparent investigation of what is in place by an objective body by the CEC may very well find that the U.S. is fulfilling its obligations.”

However, based on Oceana’s research into the government’s own documentation of whale entanglements and vessel strikes, Brogan said the organization is confident the U.S. isn’t upholding its own standards.

“We’re confident that the facts are going to show that the U.S. is not doing enough to protect right whales.”

If the council ultimately decides there is a violation and an investigation commences is unclear. Under the USCMA, Canada and Mexico could impose trade restrictions on the U.S. if the investigation highlights failures that the other two countries challenge – though the countries have other options.

However, Canada and Mexico have both been facing pressure from the United States on environmental issues, both on the issue of right whales and other species. Massachusetts Senators Edward Markey and Elizabeth Warren sent a letter to Canada calling on them to do more to protect right whales or face prohibition on imports, and Mexico has faced seafood bans related to Marine Mammal Protection Act enforcement issues.

Regardless of the results of the investigation, Brogan said the factual record will at the very least create an objective third-party account of how the U.S. is handling its right whale protections.

“The ultimate goal is to strengthen the regulations and bring the U.S. management of risk to the right whales down to the legal limits,” he said.