It's Time to Act for Right Whales

Agency Drags its Feet on Protecting Right Whales, Defenders Jumps In

Facing threats ranging from ship strikes to climate change, the highly endangered North Atlantic right whale needs the utmost protection to escape extinction. But that’s not even a point of contention in our recently-filed lawsuit against the National Marine Fisheries Service (NMFS). We’re all on the same page when it comes to the science behind why the right whale’s current designated critical habitat is insufficient. Defenders has waited long enough for NMFS to take action on our 2009 petition to expand designated critical habitat under the Endangered Species Act. In 2010 –only after we sued NMFS for not meeting the mandatory deadlines to take action – NMFS promised to move forward with a proposed rule by mid-2011. Nearly three years later, we’re still waiting for NMFS to fulfill its obligations. That’s why we recently filed a lawsuit in federal district court in Boston, Massachusetts, to challenge the agency’s unconscionable delay in protecting right whales.

Right whale and calf.

Right whales need a wide range of protected habitat to accommodate their migration from their winter calving grounds off the southeastern United States through the mid-Atlantic to their feeding areas off the New England coast. Yet these areas are not adequately protected from ship traffic, entangling fishing gear, noisy military exercises, and energy development. Currently, NMFS has only designated 4,000 square miles of right whale critical habitat, even though the most up-to-date science demonstrates that the species’ critical habitat really covers 50,000 square miles. This vast discrepancy might help explain why the right whales struggle at a population of fewer than 450 individuals, making it the most endangered large whale species, and one of the most endangered mammals, in the world. We want to change that, and protecting these vulnerable whales from ships, nets and more is the best way to do it.

Since initially designating critical habitat in 1994, NMFS has repeatedly acknowledged that the 4,000-square-mile area is not large enough. Over the past ten years, NMFS has published numerous studies on the importance of expanding critical habitat. The agency stated in the right whale recovery plan just how essential expanding the whale’s protected habitat is to decreasing the number of whales killed by human activity, and to increasing the species’ likelihood of overall survival. Despite the evidence put forward by its own experts, the agency failed to anything about it.

After years of inaction on the agency’s part, in September 2009, Defenders and our conservation allies formally petitioned NMFS to increase the right whale’s critical habitat under the Endangered Species Act. Because the law required a response from the agency within 90 days, a deadline the agency failed to meet, Defenders and our allies filed a lawsuit and settled the case when NMFS belatedly issued the required 90-day and 12-month findings. When NMFS finally published its required response in October 2010, it reiterated its support of expanding the whale’s critical habitat and stated that it would propose a rule to that effect by the second half of 2011. Almost three years later, we’re still waiting on this proposed rule to appear in the Federal Register. So this month, we joined forces with fellow conservation allies, asking the courts to set a firm deadline for NMFS to act on the long-overdue expansion of right whale critical habitat. The agency will have sixty days to file an answer to our complaint.

Meanwhile, right whales struggle to survive in dangerous habitat that NMFS’ scientists have identified as critical to the species’ survival. As the agency dawdles, new threats are cropping up in the right whale’s habitat, where the species faces expanding energy development, commercial fishing, and ship traffic. The low reported number of newborn right whales this calving season reinforces the significance of these dangers. This spring, scientists observed only 10 new right whale calves, half the annual average since 2000. It is high time the agency stops neglecting right whales and gives them the protection it has long deemed appropriate and necessary.

Anne Russell Gregory, Conservation Law Coordinator