Every summer, an extended family of orcas makes their way to the chilly waters of Puget Sound in Washington. As the three groups gather—known scientifically as the J, K, and L pods—they perform a greeting ceremony in which each faces its fellow pod members for several minutes and then gradually intermingles within the groups, communicating and playing excitedly.
The ritual is just one of the many magical characteristics of the Southern Resident orcas—the only resident population in the contiguous United States—that draws thousands of camera-clad visitors onto the waters each year, hoping to catch a glimpse of sea breath, a fin breaking the waves, or an orca bursting from the sea.
“The orca whales in this region are hugely important to the people, historically to the native people, but then I think for anyone who lives here and goes out into Puget Sound and is able to see the orcas, it’s really very a special kind of occasion,” says Patti Goldman, Earthjustice’s Vice President for Litigation, who spearheaded efforts to protect the orcas in Earthjustice’s northwest office. “There are no other orcas that really concentrate here in the same way, so they are unique and really special to this region.” [Listen to Patti talk about her orca work.]
Since the last ice age, the Puget Sound orcas have made their home along the northwest coast, relying on the area’s abundance of salmon for survival. The orcas have no natural predators, yet their existence has been threatened for decades, most recently by a number of environmental stressors. As members of the top of the food chain, orcas serve as an indicator of the overall health of the ocean ecosystem.
Judging by their numbers, the outlook isn’t good.
An Ailing Ecosystem
Pollution, habitat loss, overfishing and even climate change have all taken a toll on the resident orcas, whose numbers today hover around 80, with fewer than 50 reproductive adults. These same environmental stressors are also battering the ocean ecosystem—a place that the orcas, as well as 90 percent of life on Earth, call home.
According to a 2008 United Nations Environment Program report , humans are currently observing what may become, without significant policy changes, a collapsing ecosystem with climate change as the final coup de grace . Consider the following:
- Fish consumption advisories covered every single Great Lake and almost 80 percent of coastal waters in the contiguous U.S in 2003.
- Coral reefs, which support a quarter of all marine life, are on course to become the first ecosystem entirely destroyed by humans.
- Up to 80 percent of the world’s primary catch species like cod and tuna are exploited beyond or close to their harvest capacity.
And then, of course, there’s climate change. Oceans are one of the world’s greatest carbon sinks, taking in 22 million tons of carbon dioxide every day, about a third of all carbon emissions. But this environmental amenity, a blessing to humanity, is a potential curse for the underwater world. Increased carbon emissions are fueling sea level rise and ocean acidification , and causing ocean chemistry to change at least 100 times more rapidly than it has during the 650,000 years before the industrial era.
Most beachgoers, looking out into the ocean, may only see sparkling waters, but wade a little deeper and the picture becomes murky.
“You know, we are land-based animals after all. Part of the challenge of dealing with the oceans is that we don’t live in the oceans and we can’t see into the oceans, so we really can’t see what the status of the resource is,” says Steve Roady, Oceans Program Director at Earthjustice. “I think a lot of people just have no idea how badly depleted a lot of these ocean species are.” [Listen to Steve talk about his work.]
Signs of climate change impacts are beginning to appear in the form of bleached coral reefs, melted ice sheets and the corroded shells of sea creatures like starfish, crabs and sea urchins. Multiple, high intensity stressors such as these—like distress signals from a sinking ship—have been a precursor for the Earth’s last five global extinction events.
Weathering the Storm
Plagued by a multitude of ailments, the ocean’s ability to cope with a changing environment is severely compromised, which is why scientists believe that building up the ocean’s resilience is crucial to weathering the inevitable storm that an increase in carbon emissions will bring. Since 1998, Earthjustice has spearheaded efforts to keep the ship afloat by using federal environmental laws like the Magnuson-Stevens Fishery Conservation and Management Act, the National Environmental Policy Act and the Endangered Species Act.
“We’re certainly living in a target rich environment in terms of going after the government for failing to take action,” says Roady, who leads Earthjustice’s core oceans litigation team and has been litigating oceans-related issues for more than a decade.
Covering the Atlantic, the Pacific and everywhere in between, Earthjustice’s oceans team brings selective lawsuits that force the government to minimize overfishing, pollution and habitat destruction. In New England, ground zero for bad fisheries management, Earthjustice attorney Roger Fleming has been working with local fishermen to promote healthy ocean ecosystems in the nation’s oldest fishery. Over the years, Earthjustice has had a string of victories that have led to more sustainable fisheries on the east coast and the slow rebuilding of cod and herring populations.
“I think there’s an opportunity to make a final push to get across the goal line here in New England, get fishing limits in place, and get these historically valuable and culturally important fishing resources rebuilt,” says Fleming. “If we can make changes that will work in New England, I think that it helps lead the nation in terms of the direction for fisheries policy.” [Listen to Roger talk about Earthjustice’s east coast oceans work.]
In addition, Earthjustice has successfully protected both the Arctic and Florida’s coastal waters from ill-considered oil exploration drilling. In the Arctic, Earthjustice has long challenged insufficiently analyzed drilling proposals, both on and offshore, and has successfully blocked Shell Oil’s drilling in the Arctic for all three years of its 2006–09 oil exploration plan. Earthjustice also stopped the Coastal Petroleum Company from drilling for oil off the coast of Florida by successfully arguing that the company’s slim chance of finding any recoverable oil was outweighed by the environmental risks.
In the Pacific, Earthjustice is working to limit both longline and trawl fishing, two forms of indiscriminate fishing gear that result in large numbers of bycatch—fish caught unintentionally in a fishery while intending to catch other fish. In 2000, more than 200,000 loggerhead sea turtles and 50,000 leatherbacks were accidentally caught as bycatch worldwide. In 2011, Earthjustice successfully challenged the federal government’s plan to allow Hawaii’s swordfish fleet to catch nearly three times as many loggerhead sea turtles as previously permitted. In Alaska, Earthjustice litigation forced the National Marine Fisheries Service to close Steller sea lion rookeries to industrial-scale trawl gear that targeted pollock and other sea lion prey.
“It’s really one of the first cases that highlighted the ecosystem effects of fishing and how important it is to consider not just how much fish we’re consuming, but whether we’re leaving enough in the ecosystem for everything else to keep on sustaining themselves, including seals and sea lions and a lot of other key predators in the ocean,” says Earthjustice attorney Andrea Treece, who is working on west coast ocean issues. “So it was a great case to try and bring that issue to the forefront and change the way that a major fishery was managed.” [Listen to Andrea talk about Earthjustice’s west coast oceans work.]
A Broader View
For decades, federal regulation has taken a fragmented approach to fisheries management, focusing on a single species without looking at where it fits into the bigger picture. Earthjustice’s ocean litigation is working to broaden that approach by taking a more holistic view of its oceans litigation work, a crucial tactic in buffering the ocean against climate change impacts.
In the case of Puget Sound’s orcas, that meant getting the orcas on the endangered species list was only the first step in saving the species. Protecting salmon, their key food source, and decreasing water pollution, were also crucial to allowing the orcas to recover from their endangered status in western Washington.
To build up the oceans’ resilience, Earthjustice is taking a bottom-up approach by increasing efforts to protect forage fish species like sardines, menhaden, pollock and herring, which serve as the building blocks of the ocean food web. These species, which feed everything from seagulls to sea lions, are being vacuumed out of the oceans at unsustainable levels.
“Forage fish play a really key role in the ocean food web,” explains Roady. “They serve as the diet for a lot of higher level species and if they get removed or overfished, you may have a cascading effect of losing some of these higher level species.”
In addition to mitigation, Earthjustice’s legal efforts work on adaptation, since at this point ocean acidification and sea level rise are inevitable to some degree. Currently, Earthjustice’s International office is working to build the resilience of marine ecosystems to ocean acidification and provide legal advocacy to small island states on climate change impacts.
According to a 2010 United Nations report on the study of climate change impacts in the Caribbean, sea levels could rise up to 6.5 ft by the end of the 21st century if global warming continues, displacing 260,000 islanders from their homes. Antonio Lima, vice chairman of the Association of Small Island States, has said that whole nations will be washed away by sea level rise, including the people of Kiribati, Tuvalu, most of the Cook Islands, the Marshall Islands and the Maldives.
Back in the early 1800s, the English poet Lord Byron wrote that "man marks the earth with ruin, but his control stops with the shore." Two centuries later, as more people see for themselves that the ocean is not, in fact, an inexhaustible ecosystem, the tides on ocean management are slowly beginning to turn.
“We have just begun to look into the ocean and my realization is that we, as humans, acted in a normal human way that we do. We are conquistadors. As we discover, we destroy,” says David Doubilet, an underwater photographer for National Geographic who has seen firsthand the destruction of the oceans. [Listen to David talk about underwater photography.]
“It’s a very sad fact, but if you turn this around at least we have a place now that we just found out about that maybe just may be worth the justice that humans can sometimes bring to a place. We can preserve.”
Listen: Down to Earth
U.S. Environmental Protection Agency: National Coastal Condition Report 2008
United Nations Environmental Programme (UNEP): In Dead Water
Pew Research Center for the People and the Press:
- Carbon Dioxide and Our Ocean Legacy
- Global Benefits and Impacts of Marine Recreational Activities
- Managing Fish and Fishing in America’s Oceans
- Marine Fisheries and the World Economy
,  - UNEP: Ecosystems and Biodiversity in Deep Waters and High Seas
,  - EPA National Coastal Condition Report III
 - The State of World Fisheries and Aquaculture 2010
,  - PEW report: Carbon dioxide and our ocean legacy
 - PEW report: Managing fish and fishing in America's oceans
 - Report: The Economics of Worldwide Coral Reef Degradation
"I think there’s an opportunity to make a final push to get across the goal line here in New England, get fishing limits in place, and get these historically valuable and culturally important fishing resources rebuilt, If we can make changes that will work in New England, I think that it helps lead the nation in terms of the direction for fisheries policy."