Environmental Impact Statements: The Significance of the Makah Whaling Decision
June 11, 2000
On 9 June 2000, a panel of the 9th U.S. Circuit of Appeals overturned the ruling that allowed Washington state’s Makah tribe to resume whales along the coast of Washington state, holding that the environmental impact of the hunt had not been adequately considered.
The Makah had hunted whales for generations until the 1920s, when commercial whaling decimated the whale population. But the tribe moved to resume the hunt after grey whales were removed from the U.S. Endangered Species List in 1994. Claiming whaling rights under an 1855 treaty, the Makah killed a whale in 1999.
The June 2000 decision reinstates a lawsuit filed by Representative Jack Metcalf, sending it back before U.S. District Judge Franklin Burgess. Burgess had dismissed arguments from the congressmember and non-human interest groups that the environmental assessment for the hunt was inadequate.
The court stated: “The Federal Defendants did not engage the National Environmental Protection Act process ‘at the earliest possible time.’ Instead, the record makes clear that the Federal Defendants did not even consider the potential environmental effects of the proposed action (Makah whaling) until long after they had already committed in writing to support the Makah whaling proposal…”
This holding with respect to Neah Bay Whales is good news in itself, and it also has relevance to non-human great apes.
In 1998, Bill Spriggs, a Washington, D.C. attorney, provided advocacy groups with pro bono representation in a lawsuit to remove a number of Chimpanzees from The Coulston Foundation laboratory.
The suit was successful. One aspect of the legal research involved analysis of a case called Progressive Animal Welfare Society (PAWS) vs. the Dept. of the Navy, and its use of the National Environmental Protection Act (NEPA).
Just as in the PAWS case, when Chimpanzees were transferred from the U.S. Air Force to The Coulston Foundation, the government ought to have completed an environmental impact statement. In the Progressive Animal Welfare Society (PAWS), the U.S. District Court for the Western District of Washington held that the National Environmental Policy Act of 1969 (NEPA) required the Navy to prepare a “reverse” environmental impact statement (EIS) before dispatching Atlantic bottle-nosed Dolphins at the Trident nuclear submarine base on Puget Sound in Bangor, Washington. The court considered the Dolphin project a “major federal action” under NEPA. The Navy’s proposal was “controversial,” and Dolphins are an integral part of the environment.
NEPA was introduced by the late Senator Henry M. Jackson, who observed:
“The needs and aspirations of future generations make it our duty to build a sound and operable foundation of national objectives for the management of our resources and our environment. We hold those resources in trust for our children and their children. The future of succeeding generations in this country will be shaped by the choices we make. We must choose well, for they cannot escape the consequences of our choices.”
Senator Jackson recognized that the most important feature of the National Environmental Protection Act is its requirement that all agencies of the federal government comply with it. He expected the Act to “establish checks and balances in order to ensure that potential environmental problems will be identified and considered early in the decision-making process and not after irrevocable commitments have been made.” Senator Jackson’s “checks and balances” can be achieved through the requirement that an environmental impact study (EIS) be prepared whenever “major federal action” in the form of a project or legislation is proposed.
The U.S. Supreme Court has recognized the environmental impact statement as “the outward sign that environmental values and consequences have been considered during the planning stage of agency actions.”
Agencies must prepare an environmental assessment for projects that may fall under the National Environmental Protection Act. The environmental assessment determines whether a full environmental impact statement will be necessary. If the agency decides that an environmental impact statement is necessary, notice of intent to prepare an environmental impact statement must be published in the U.S. Federal Register. The preparing agency must make the draft environmental impact statement available to the Council on Environmental Quality and the public for comment. After the comment period, the agency must file its final draft, discussing the impact of the project, any and all reasonable alternatives to the proposed action, possible mitigation measures, and its final decision concerning the action to be taken. A court may evaluate the agency’s compliance with the procedural requirements, and a plaintiff challenging an agency decision under the National Environmental Protection Act must show that the agency’s action was “arbitrary and capricious” under the standards of the Administrative Procedure Act.
Permits for the taking of Dolphins and other marine mammals are issued by the Department of Commerce, under the Marine Mammal Protection Act of 1972 (MMPA). A special statutory exemption from the MMPA allowed to the U.S. Navy to bypass many MMPA procedures if it obtained a “letter of concurrence” from the Department of Commerce and complied with federal regulations for the capture, care, and handling of the Dolphins. In 1988, the Department of Commerce issued a letter of concurrence allowing the Navy to take up to 100 Dolphins. The Dolphins would be captured in the Gulf of Mexico and moved thousands of miles to Puget Sound, where they would undergo distressful training sessions. The Progressive Animal Welfare Society (PAWS), and a number of other groups, learned of the Navy’s plans to use the warm-water Dolphins at the frigid Trident submarine base. Records showed that at least forty-four Dolphins had already died in the project; nearly half of the dead ones showed signs of starvation and stomach ulcers, indicating severe stress. The plaintiffs were also concerned about the psychological effects of keeping highly social Dolphins in solitary pens.
PAWS, asserting that the Navy’s proposed use of the Dolphins would violate U.S. regulations for the care and handling of marine mammals, questioned the Navy’s failure to prepare an environmental impact statement on the impact of the environment on the Dolphins themselves and the Commerce Department’s issuance of a permit for Dolphin capture without performing an environmental impact statement. The Navy argued that the National Environmental Protection Act’s purpose was confined to addressing the effects of a project on the environment. The Navy asserted that such “reverse impacts” study on the Dolphins themselves was not mandated by the statute and moved to dismiss the action. The plaintiffs won a preliminary injunction to prevent the Navy from deploying the Dolphins at Bangor until the environmental impact statement could be prepared.
Notwithstanding cases in which reverse impact studies were deemed unnecessary, PAWS argued that “dolphins, unlike buildings, are an integral part of the environment itself.” The plaintiffs cited Jones vs. Gordon, a case in which Sea World was issued a permit to capture up to 100 Orcas “for purposes of scientific research and public display.” The plaintiff argued that the capture permit was void. The court cited the Environmental Protection Act’s language that the statute’s requirements apply “to the fullest extent possible”. An environmental impact statement was required.
Similarly, a permit was invalidated in Greenpeace U.S.A. vs. Evans, involving the collection of skin and blubber samples from Whales in Puget Sound. The court ruled that the issuing agency had allowed “controversial invasive methods of collecting data” while wrongfully neglecting to prepare an environmental assessment or an environmental impact statement. In both Jones and Greenpeace, the proposed uses of the mammals were for scientific purposes, which are normally exempt from the environmental impact statement requirement under the National Environmental Protection Act. In Greenpeace, however, the court pointed out that an agency may still be required to prepare an environmental assessment and impact statement in “extraordinary circumstances.” One of the factors used to determine if an environmental impact statement is necessary is whether the proposed action is “highly controversial.”
The comparison of the PAWS case with cases involving Chimpanzees is apparent here. The use of Chimpanzees in laboratories, or the transfer of the titles that allow holders to determine their fate, is controversial. And when bids were submitted for ownership of 141 surviving U.S. Air Force Chimpanzees, the issue became a focus of international media attention.
PAWS successfully argued that the decision to take wild Dolphins from the Gulf of México, train them, and move them to Puget Sound was a “major federal action” requiring an environmental impact statement under the National Environmental Protection Act. The court observed that the Navy failed to “provide(d) for NEPA review at any point in the process,” yet they had made the “controversial decision” to move forward with the project. The judge rejected the Navy’s claim to the armed forces exemption to the MMPA. The court decided that reverse impact should be studied under the National Environmental Protection Act in “highly controversial” cases.
The Jones and Greenpeace cases relied on this factor as well, with similar results. In these three cases involving marine mammals, the courts pointed to disputes among experts and the scientific community as to the impact the proposed projects would have on the non-human animals. There was also a public outcry over the Navy’s plans for the Dolphins. Yet controversy” means scientific dispute over the impact of a project, and not merely public opposition to the project.
In Sierra Club vs. Watkins, the court found “little authority concerning how great the difference of opinion must be in the scientific community” in order to constitute a controversy requiring an environmental impact statement. After considering the body of scientific data on both sides of the issue, the court deferred to the federal agency, which “must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” The court exempted the agency from environmental impact statement because the agency’s scientific data and conclusions appeared to represent the scientific majority view. Thus scientific debate over an environmental issue may not suffice to override a court’s deference to a federal agency.
Yet we would argue extraordinary circumstances in cases involving Chimpanzees and other great apes. The controversy is over the decision to continue using these non-human primates as laboratory tools—no one in the scientific community seriously questions the complex and sensitive nature of Chimpanzees, and the suffering imposed upon them in the course of research— particularly invasive research. Thus we would urge the court to observe the parallel aspects of the cases involving marine mammals who were deemed to trigger the National Environmental Protection Act. In Greenpeace, the court noted that “(a)mong those criticizing the proposed research were knowledgeable scientists with years of experience studying killer whales who raised objections about the potential adverse effects of harrassing the whales.” In the parallel situation of the U.S. Air Force bidding issue, world-renowned primatologists asserted that non-human great apes are well known to be intelligent and socially complex beings. After forty years of in-depth observations by scientists such as Dr. Goodall, the capacities of non-human great apes are no longer a subject of debate in the mainstream scientific community. The non-human great apes are humankind’s nearest living relatives, sharing 98 percent of our genetic makeup. They have language abilities, use tools, teach their young, and are capable of abstract thought, of having future plans, and of being disappointed. As the public has come to a new understanding about the nature of non-human great apes, the use of these animals in research has become an issue of growing international concern. The strength of scientific opinion has become clear. In 1997, a National Academy of Sciences panel issued a report calling for special consideration of Chimpanzees because of their similarity to humans. Also in 1997, the British Parliament announced a ban on invasive experiments on Chimpanzees and other great apes. It is a cause of deep and bitter controversy, both in the scientific community and among members of the general public, that Chimpanzees could continue to be used in toxic chemical, drug, infectious disease and invasive spinal surgery experiments. “It is incomprehensible that the Air Force would give these remarkable creatures to The Coulston Foundation,” stated Dr. Goodall.
Conclusion
In any case involving the acquistion of title, at least in which U.S. agencies play a role, ape advocates should insist on bringing a claim to the relevant district court under the National Environmental Policy, requiring the agency to prepare a “reverse” environmental impact statement (EIS) before proceeding with aquistion, research, or title transfers. Considering the financial repurcussions involved in these decisions and, above all, the social and physical needs and mental capacities of non-human great apes, such transfers constitute “major federal action” under the National Environmental Protection Act, and “controversial invasive methods of collecting data”. As such they should not be permitted in the absence of an environmental impact study—a study that duly considers the impact on the apes themselves.