By Jessica Knoblauch, Earthjustice
Silencing scientists. Barring the public from the legal process. Even lying to the court.
These shenanigans wouldn’t seem out of place as plot points in a John Grisham paperback. But the Trump administration’s determination to favor corporate polluters over the people means these narrative twists and turns have jumped off the page and now appear regularly inside the White House, among regulatory agencies, and on Capitol Hill.
The courts, however, are signaling they’ve reached their limit with these anti-scienceand undemocractic antics. In the first two years of the Trump presidency, judges ruled in Earthjustice’s favor more than 90 percent of the time in cases against the administration. Our record shows that Trump’s efforts to weaken environmental regulations are no match for the law.
The National Marine Fisheries Service, responsible for protecting our ocean resources, is the most recent regulatory agency to receive a court-ordered smackdown.
In March, a federal judge in D.C. ruled that the fisheries service violated the law by failing to use all available scientific evidence to end the overfishing of dusky sharks in U.S. waters. The ruling, in response to a lawsuit filed by Earthjustice, requires regulators to do more to end the rampant overfishing that has plagued this formidable species for years.
Protecting the dusky shark is important, and not just for lovers of Shark Week. One of the largest shark species in the Atlantic Ocean, duskies play an outsized role in the ocean ecosystem. Similar to grizzly bears or wolves, dusky sharks sit atop the food chain, where they help maintain the marine environment by eliminating sick or weak prey.
Despite being an apex predator and all-around badass species (they’re so big and fierce that they eat other sharks), duskies are having a rough time. Though dusky shark fishing was outlawed in 2000, many of these sharks still get caught up — and killed — in longline gear that targets other fish. This is known as “bycatch,” and the fisheries service so far has refused to do much about it. As a result, today their population is just a fraction of what they were before the 1980s. Even under the best of circumstances, the fisheries service predicts it will take nearly a century for the population to rebound to healthy levels. That’s bad news for dusky sharks, which grow slowly, are slow to sexually mature, and produce few offspring. So we filed a lawsuit on behalf of Oceana in 2017 to get the fisheries service to take meaningful action to protect these creatures.
Our argument was essentially this: Despite knowing for almost 20 years that excessive bycatch was preventing the dusky shark population from recovering, the agency had yet to place a definite, enforceable limit on the number of sharks caught and killed as bycatch. The agency also used faulty, incomplete data to come up with the number of sharks it thinks are caught as bycatch, ignoring the data fishermen recorded in their own logbooks. And it offered no scientific evidence that its proposed recovery measures would actually reduce the amount of bycatch overall.
In his ruling against the Trump administration, the judge had some harsh words for the fisheries service’s disregard for science. Instead of the agency refusing to use the fishermen’s logbooks, he wrote, “[the] rational response would have been to use one data source to complement, corroborate, and correct the findings of the other.” In fact, the agency has used fishermen’s records to monitor dusky sharks in the past, but it “hardly bothers to explain its inconsistent treatment of logbook data,” wrote the judge. Finally, as to why the agency simply ignored this valuable data source this time around, “The court is left scratching its head.”
In addition, earlier this year a different federal court in another fisheries case signaled its displeasure with the agency’s mishandlings of marine life. In January, a federal judge ordered the agency to issue a scientifically valid catch limit for the anchovy population within 90 days. The ruling comes after years of the service stalling on this issue by using both woefully outdated population numbers to determine a proper catch limit and by sticking new, more accurate catch data in endless internal review.
The anchovy, though admittedly less dazzling than the dusky shark, is just as ecologically important. These tiny creatures — along with other forage fish like sardines, herring, and mackerel — are like the energy bars of the sea, serving as food for larger species like whales, sea lions, and salmon. After anchovy and sardine populations both hit dramatic lows, thousands of starving sea lions began washing ashore.
In 2016, the agency proposed a catch limit that could have exceeded existing estimates of the entire anchovy population. That’s like proposing to give someone 10 dollars when you only have five. Earthjustice challenged the wildly flawed proposal, and the judge ruled in our favor in January 2018, confirming that the agency must use the best available science when establishing a proposed catch limit.
Throughout the case, the agency displayed a startling resistance to replacing its stale, 30-year-old assumptions with current, perfectly good scientific data. At one point, the agency insisted to the judge that it didn’t have updated data on anchovy abundance, only to “find” it later. Even after the court issued multiple rulings invalidating the agency’s catch rule and requiring it to come up with a new one, the agency continued to drag its heels. It even tried to keep the public from commenting on the new rule the court ordered it to produce.
In the latest ruling, the court signaled its discontent with the agency, threatening to sanction it if regulators “continued a pattern of bad faith” by exhibiting behavior that showed they “had no intention of complying” with the ruling. Earthjustice attorney Andrea Treece, who’s been working for years to protect marine species, says that the threat of sanctions is pretty rare.
“It shows how fed up the courts are with this agency,” she adds. And, with climate change causing more drastic and unpredictable changes in ocean conditions, it’s only going to get worse. “It’s time to step into the 21st century and take care of our ecosystem.”