Attorney Steve Roady discusses Earthjustice’s decades-long effort in using federal environmental laws to protect the oceans from pollution, overfishing, habitat loss and climate change.
Recorded: September 2011
Earthjustice staffer Jessica Knoblauch speaks with Steve Roady, Oceans Program Director at Earthjustice.
For more than a decade, Roady has been litigating cases that help protect our oceans from pollution, overfishing and habitat loss. Earthjustice is also ramping up efforts to mitigate climate change impacts to the ocean, such as sea level rise and ocean acidification.
Jessica Knoblauch: So, in 1998 you became the director of the Ocean Law Project at Earthjustice, which uses the law to advocate for ocean conservation and protection. What first drew you to oceans management work?
Steve Roady: Well, I guess growing up on the Gulf coast in Florida was the first exposure to the oceans and some of the issues involved. I spent a lot of time on the beaches as a child and was always fascinated by the shrimpers [as well as the entire experience, including the shells and the rays]. I really first became aware of some of the key problems in the environment when I was actually in middle school. About eighth grade we were all forced to read Rachel Carson’s classic book, Silent Spring. And it had a huge effect on me, the idea that birds were dying because of DDT was just amazing to me. And I guess that really got me thinking at a little more mature level about environmental problems. And then I’d been working in Washington for almost two decades and I heard about this project that was being put together by a foundation called the Pew Charitable Trusts that was thinking about using federal environmental laws to protect ocean resources. And again, coming from the Gulf and being aware of environmental issues for a long time, it struck me as something that had been long neglected, the care of the oceans. And so I was very interested in exploring that avenue and that’s how I first became involved in the Ocean Law Project.
Jessica: So how did Earthjustice get tied into this whole thing?
Steve: Well, I had been working with Earthjustice for a long time. I knew Buck Parker years and years ago. So when the Pew Charitable Trusts funded the Ocean Law Project, I approached Buck [Parker, Earthjustice Strategic Adviser] to see whether Earthjustice would be interested in working directly on oceans kinds of matters. The Pew Charitable Trusts had actually already approached Earthjustice to help design this program. They had looked at them in 1996 and 1997 to do a little background research on federal laws that could be invoked for the oceans.
Jessica: And so prior to that, it sounds like Earthjustice didn’t do a whole lot of oceans work? Is that correct?
Steve: There was one case that was filed in about 1992 by the Conservation Law Foundation in Boston over the cod fish populations in New England. I think that was the only case that had been filed really in the history of U.S. environmental law to try to save the oceans through environmental laws, so nobody did it. So it’s fair to say that Earthjustice is one of the leading groups to begin looking at oceans’ problems back in the [correction: late] mid-1990s [through the lens of potential federal litigation].
Basically we were working with three or four of your standard environmental laws, that being the Magnuson-Stevens Act, which is the main federal fisheries act, which directs the federal government to prevent overfishing and to deal with minimizing bycatch—that is to catch unwanted species and discard them—and to deal with habitat protection and to deal with rebuilding overfished fish populations. So we went about enforcing that act.
The second major statute used was the National Environmental Policy Act (NEPA), which of course mandates the federal government to study carefully the environmental effects of their actions before they take them. In many instances the federal agency that’s in charge of managing fisheries, that is the National Marine Fisheries Service, had really done a very sloppy job of looking at the environmental impacts of what they were doing in setting quotas and allowing fishing. So we invoked that statute as well.
Sardines school through a kelp forest. Forage fish, like sardines, play a key role in the ocean food web. (CA DFG)And we also invoked, in respect to bycatch, we invoked the Endangered Species Act because a lot of sea turtles that are listed as protected under the Endangered Species Act are killed as so-called bycatch in trawl fisheries around the country. So we invoked all of these statutes in an effort to try to curb the, in our view, pretty unrestrained fishing practices that were going on in these federal fisheries around the country.
Jessica: And so prior to that, were laws like the Endangered Species Act typically used for land-based animals?
Steve: Yes, exactly. 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 maybe even more importantly we can’t see into the oceans, so we really can’t see what the status of the resource is. You know, if you’re regulating wolves, for example, you can at least have some idea how many wolves you’re dealing with. But if you’re regulating fish, the best you can do is take a few trawl samples and do some models and you’re doing educated guessing about what the resource looks like. So it’s a challenge. And nobody had really gone out into the oceans to try to use these federal laws to protect the resource.
Jessica: And so do you think that challenge is part of the reason why there is such disconnect between people’s perception of the ocean and the current reality?
Steve: I definitely do. Certainly when we started this, to look at the public perception of the oceans it was a little bit like we were back in 1818 when Lord Byron wrote that famous poem that talked about how man’s ability to ruin stops with the shore, that the oceans are vast and inexhaustible. And that was kind of the view. I think that’s changing a little over the past decade or so as more and more stories have come out about overfishing and pollution and problems in the oceans. But still, I think a lot of people just have no idea just how badly depleted a lot of these ocean species are.
Jessica: And do think that possibly another part of that is when one species of fish is wiped out, it seems like the fishery industry just goes farther and deeper into the ocean and just finds a different fish to replace that endangered species. Is that part of the issue, too?
Steve: No question. The classic example of that is the Patagonian toothfish, otherwise known as the Chilean sea bass. The fishermen discovered that fish sometime in the 1990s really and began just hammering it. All of a sudden everybody was eating Chilean sea bass and they wiped out large portions of the population of that fish down in the southern ocean. Part of the dilemma of the fishing industry faces is of course that we’re running out of tuna-like fish and fish like the Patagonia toothfish, the so-called white meat fish.
Jessica: So in addition to overfishing and some of these other problems, climate change is obviously one of the biggest threats to ocean conservation. How has that affected Earthjustice’s work?
Steve: Well climate change has affected our work in several ways. First of all, one of the many odious aspects of climate change is a phenomenon called ocean acidification, by which people mean that as we load increasing amounts of carbon dioxide into the atmosphere, we end up making the oceans gradually more acidic. And that in turn retards the ability of a lot of shell-forming species to grow and develop. These include species that are fed upon by fish and also include coral reef-forming structures.
As you lose the reefs and gradually lose the little critters like pteropods that are fed upon by salmon, for example, the fish populations who rely upon the reefs and who rely upon these small shell-based creatures are obviously threatened. It is a serious concern that the fishery managers have [not] yet really [found] any systematic way to factor in these kinds of climate change induced problems into their setting of quotas and their regulation of the fisheries.
We’re doing a project for the Pacific small island developing states. These are states like Palau and Nauru and the Marshall Islands. We are very concerned about what is physically happening to them right now in respect to climate change. They are literally having sea level rise and they’re having ocean acidification problems. We assembled a team last year to help them think their way through some of this.
The basic problem with ocean acidification is that it’s inevitable at this point to some degree. We’ve loaded enough carbon dioxide in the air right now, in the atmosphere, that even if everybody stopped breathing today and driving to work and everything else, there’s still enough of that CO2 up there that just through the chemical reaction and the way the earth works, the oceans are going to acidify more. The only question is how much more, right? And it’s pretty sobering stuff.
Jessica: With so many different threats facing ocean preservation, how is Earthjustice tackling this issue? How do you even begin?
Steve: We’re certainly living in, as they would say, a target rich environment in terms of going after the government for failing to take action. So we do bring selective lawsuits that attempt to force the government to do a better job keeping overfishing under control and minimizing bycatch, for example. So for example we recently won a case based in the Gulf of Mexico just off of Tampa where a part of the reef fish fishery there is using longlines that they lay down on the ocean floor and they attempt to catch grouper, for example. These longlines end up hooking a lot of sea turtles that are foraging on the continental shelf there just west of Tampa. And these turtles, of course, are endangered and protected under the Endangered Species Act. We were able to convince the court to get this fishery to take better steps to protect the turtles. So that’s one overfishing bycatch case that we’re working on.
In terms of pollution, we are trying very hard to reduce land-based sources of pollution through cases that are being brought by our Seattle office as well as our Washington, D.C. office. We’re trying to reduce the amount of pollution flowing in estuaries that affects fish habitat. A lot of the scientists are telling us that in order to make habitat structures, reefs and outcroppings more resilient to resist the warming, essentially the climate change, we need to keep pollution off of them and we need to reduce overfishing of the fish that rely upon the reefs. So both of those steps are taken to deal with the climate change phenomenon.
Jessica: Can you talk a little bit about what’s going on the Arctic in terms of ocean management?
Steve: You know the Arctic’s an interesting situation. The North Pacific Fishery Management Council recently, with the help of several environmental groups, including Earthjustice, drew a line and they basically have said that there’s going to be no commercial fishing allowed north of that line for the time being until they can get a handle on what fish populations are migrating north due to climate change.
Jessica: And what about on the west coast?
Steve: Right now in the Seattle office they’re working very hard to deal with land-based sources of pollution into Puget Sound, which will protect, among other things, the orca resident population of Puget Sound. They also, of course, have had a long standing effort [both there] and in the Oakland office to deal with salmon populations on the west coast. Salmon populations spend a fair amount of their time out in the open ocean and the work there has been intense really over at least a decade, mostly under the Endangered Species Act and NEPA to protect salmon populations.
More recently, out of our Oakland office we’re looking hard at a new initiative having to do with protecting forage fish on the west coast, things like sardines. In fact there’s a national effort underway, again spearheaded largely by the Pew Environment Group, to look at protecting forage fish populations. The notion is that forage fish play a really key role in the ocean food web. They serve as basically 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.
Jessica: And so, for the case like the orcas, it’s not enough just to cut down on stormwater pollution or designate critical habitat for these species. You also have to protect the food that they’re eating because without that they can’t survive.
Steve: That’s correct. So, for example, if you talk with the Seattle office they’ll tell you that salmon are a key part of the orca diet. And if you can deal with protecting habitat for salmon, protecting water quality for salmon, that will also work to the benefit of the orcas.
Jessica: You mentioned that one of the laws that Earthjustice often uses is the Magnuson-Stevens Act. Is the hope to use these laws to enforce environmental protections or is Earthjustice actually working to strengthen these laws at the same time?
Steve: We do some of both. We think that the act, which was originally passed in 1976 and then was strengthened significantly in 1996, and then was amended again in 2006, is quite good. It’s quite strong. We think it could be strengthened a bit as well, but mostly we’re trying to enforce the very good provisions that are contained in that act.
Jessica: And so it’s not just about sort of putting these fish behind a line that you can’t cross. It’s more about working with fishermen and making sure that we actually have something to fish in the future by using sustainable methods?
Steve: Yes, indeed. There are several very conscientious commercial fishing groups in New England that fundamentally understand, because they’re out on the water every day, they fundamentally understand that some of these fish populations are in trouble. And they understand further that it’s in their own economic self-interest to make sure that the fish populations stay robust. And so we have been working with them now for a number of years to help advance constructive solutions to sustainable fishing. We think that sustainable fishing is really the only way to go. It works for both the fishermen and for the fish.
Jessica: Are we doing anything with farm fishing?
Steve: We did bring a challenge to a fishery management plan that was adopted by the Gulf of Mexico fishery management council a couple of years ago that would have allowed so-called open ocean aquaculture, that is to say aquaculture out in the federal ocean waters. We challenged that rule because there were no national standards set up to protect the ocean from pollution and other kinds of problems that might be equated with open ocean aquaculture. The case did not progress because the judge decided since there were no regulations implementing that fishery management plan, the case was technically considered to be “not ripe” for adjudication. But we’re watching this to see whether we need to challenge other fishery management plans that allow for open aquaculture. And our concern of course is that if they’re going to go with aquaculture that it be done in a way that has uniform and various protective national standards for aquaculture.
Jessica: Along the same lines, does the genetically engineered salmon issue fit into our oceans work?
Steve: Yes, we are actually looking very closely now at one petition, one application pending in front of the federal Food and Drug Administration (FDA) by a company that is attempting to get a permit to grow genetically engineered salmon and to sell the product here in the U.S. And we have been quite instrumental in working with a number of groups who are concerned about this application and are specifically concerned that the FDA has not adequately analyzed the environmental impacts of this sort of genetically engineered animal being introduced into the U.S. markets.
One problem that some people are worried about is that you might end up with a so-called sterilization problem if you end up getting fish released into the wild. If, for example, you were to cultivate genetically engineered salmon in, say, a fish farm, and there would be an escape of these fish, the concern is that they would end up contaminating the local wild populations and perhaps even leading to a wiping out of parts of the populations of the wild fish over a number of generations. That’s one concern.
The science on this is still evolving and one of the points we’re making in our comments to the FDA is that they need to really carefully evaluate these kinds of potential issues before they go forward.
Jessica: And it seems like we have some unlikely allies on this issue. A lot of conservative legislators, especially in Alaska, are against the GE salmon because it might impact the fisheries up there.
Steve: Yes, there were two different letters filed by quite a wide coalition of senators and congressmen back last fall when the FDA had a public hearing on this and they’re very concerned about the potential negative effects of genetically engineered salmon on their salmon populations in Alaska. I think Washington State senators and congressmen joined those letters as well because they’re just worried about the fact that this may have negative effects on their wild populations.
Jessica: Speaking of legislation, can you give any other examples of times we’ve needed to work on the Hill for ocean management? Do we do a lot of policy and legislation work on that issue?
Steve: We support a number of other groups who are quite active on the Hill and there’s almost an annual struggle that plays out on the Hill in respect to the Magnuson-Stevens Act. A lot of the commercial fishermen or processors tend to press pretty hard to weaken the Magnuson-Stevens Act and to allow, for example, longer periods for rebuilding populations.
There are a number of groups here who work on the Hill and we provide legal support and advice to them as they work. I think that the amount of time that we actually spend sending policy and legislation to the Hill is more limited than on some other issues, but it’s largely because there are so many other groups looking at this that our role is largely legal advice. Although, going forward we can conceive of a situation where we’re actually playing a more direct role, depending on how the debates go over the next round of potential amendments to the Magnuson-Stevens Act.
Jessica: I see. And that’s a yearly fight? Is that because it comes up for reauthorization?
Steve: No, it’s just because fishermen tend to be very vocal every year about their fishing quotas!
Jessica: Gotcha. So what is Earthjustice unique contribution to oceans policy? How are we different from other environmental organizations?
Steve: Well it seems to me that it comes down to what we do best, which is we take major precedent-setting cases in the court and we do our best to make sure the federal government is complying with the basic thrust of the laws that protect the ocean resource. So over the years since we started the Ocean Law Project back in 1998, we’ve had a number of significant wins in the courts that set some significant precedents with respect to how the federal government manages ocean resources in a sustainable way.
Jessica: And are these legal precedents something that other organizations have since built on as a result of work?
Steve: Absolutely. Typically we’ll have a case that we’ll bring on behalf of other groups, so if a case is won the precedent goes to everybody’s benefit and the other groups definitely take them and use them.
There was fairly well known case that I’m told now appears in a lot of the environmental law textbooks around the country. It was the summer flounder case that we won in 2000 in the D.C. Circuit. It established a precedent that when the government sets a quota for an overfished population that’s trying to rebuild the population, that quota must have at least a 50 percent chance of assuring that overfishing ends and rebuilding takes place.
The government had been trying to set a quota that had less than a one-in-five chance and we got the court to say no, you can do much better than that. Since then that precedent has been used by a number of groups to actually continue putting pressure on the government to increase the probability that their quota will actually rebuild the populations and end overfishing so that some councils are now using a 75 percent chance of success as a guide post. So that’s the kind of thing we do is we set a precedent that gains momentum over the years.
Jessica: Last question. In July 2010, President Obama signed an executive order establishing a National Policy for the Stewardship of the Ocean, Coasts and Great Lakes. Are you familiar with that policy and has it affected Earthjustice’s work at all on this issue?
Steve: We are quite familiar with that policy. We actually helped work with some of the Obama administration staff who were putting that policy together. And we provided some advice and support for them as they put it together. We think it’s a wonderful policy because it promotes the idea that the federal government is a steward, sort of a public trust trustee of the federation of resources. We think that’s a very sound and important principle to establish.
They’re just now implementing that policy. President Obama signed the executive order, as you say, about a year ago and they’re still putting some of the implementing processes into place. So it’s a little bit early to say how much influence that policy is going to have, but it has great promise. For example, it talks about regulating more carefully land-based sources of pollution that adversely affect our estuaries. We think that’s a wonderful idea and we hope that it’s going to force the federal agencies to work together to do that better.
It also talks about a concept called coastal [and] marine spatial planning, that would require federal agencies to work together in these areas where people are fighting over. What areas to drill, what areas not to drill, what areas to fish, what areas not to fish, that sort of thing, and help them do a coordinated plan for use of the ocean resources. So we think it’s a great idea and we’re hopeful it’s going to lead to some progress, but it’s a little early to say.
Jessica: So it sounds like one of the goals is to get each of the regulatory agencies to work together a little bit better on this issue?
Steve: Yes, exactly. To coordinate their uses of the ocean. Yes.
Jessica: Well that’s all the questions that I have for today. Thank you so much for your time. And if our listeners would like to learn more about Earthjustice’s ocean litigation work, please visit earthjustice.org/oceans.
Explore an interactive map describing how work from each of Earthjustice' regional offices contributes to a holistic approach of protecting the broader ocean ecosystem: Oceans' Eleven