The NJDEP withdrew their lawsuit against the National
Science Foundation (NSF), Lamont-Doherty Earth Science Observatory, and
National Oceanic and Atmospheric Administration (NOAA). The lawsuit sought to
challenge the legality of the Rutgers University led seismic surveying
expedition off the coast of Long Beach Island, which concluded in July. The stipulation of dismissal was filed at close
of business today.
“It is very frustrating the ocean did not have her day in
court with judge and jury. Strong-arm tactics by federal agencies trumped a
state’s ability to protect whales, dolphins, and fish at the peak time of their
biological activity; Rutgers University valued the schedule of a few above the
livelihoods of hundreds of fisherman and ignored thousands of citizens;
and an extraordinary roster of federal, state, and local elected leaders. If
this was the oil industry it would be a national scandal. Clearly,
we urgently need to establish a Clean Ocean Zone, strengthen our laws
protecting the ocean, and warn other states about this threat.” Said Cindy
Zipf, Executive Director of COA.
NJDEP and NSF, NOAA, and LDEO agreed to dismiss the suit
without prejudice, preserves NJDEP’s ability to challenge any future seismic
surveying.
“We are disappointed that the merits of NJDEP’s complaint
focusing on the many deficiencies in the environmental permitting process, and
the impacts of seismic surveying on New Jersey’s coastal interests, were never
adjudicated. Even more disturbing, is that the several issues related to the
Coastal Zone Management Act and a State’s ability to use these federal laws to
prohibit environmental harmful activities outside of their state waters were
never heard. These issues are acutely relevant right now, as the Obama
Administration has opened up the Mid-Atlantic to widespread seismic surveying
for oil and gas exploration. What could have been a clear path for Mid-Atlantic
States to oppose these harmful activities has now become decidedly murky.” Said
Zachary Lees, policy attorney for COA.
BACKGROUND:
Since 2014, Rutgers University had led the NSF funded study that
was staunchly opposed by the State of NJ, state and federal elected
officials, thousands of citizens, commercial and recreational fishing groups,
and members of the public. All were concerned that, based upon 20
years of study, the seismic blasting would have impacts on New Jersey’s
marine resources. The 2014 and 2015 Rutgers’ study was design to emit
250 decibel blasts every 5 seconds, 24 hours a day, for 30 days in a
small are of ocean off Long Beach Island during the peak migration and
biological activity for marine resources including endangered species.
Throughout the two years that this expedition was reviewed, permitted,
and undertaken, there have been manipulations, deficiencies, and flaws in the
process including:
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No public hearings were scheduled to educate the public or allow a
meaningful opportunity to review and comment on the project.
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In 2014, Rutgers and company failed to notify the State of New Jersey as
to its blasting plans, and then successfully argued to the federal permitting
agencies that New Jersey was time-barred from being able to review the project.
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In 2015, study proponents changed the way they characterized the study
(from a state agency project to a federal project) to prevent New Jersey from
having veto power over the authorization process. The structure, means,
and methods of the project had not changed.
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NSF engaged in negotiations with the State, even while preparing to
carry on with this project behind the DEP’s back. NSF had no intention to modify
the project, leading the DEP on while it prepared its’ final permitting
documents.
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The summer months ahead of the critically important time of year for
marine life, and the livelihoods of commercial fishermen. In 2014,
Rutgers and NSF argued that boat availability was a key factor in the timing
the project for the summer months. When the study was rescheduled for the
Summer of 2015, it became more apparent that the timing of the study was being
driven by the schedules of its expedition members—university faculty and
graduate students—rather than the schedule of the boat.
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In 2014 and 2015, final permits and authorizations were literally issued
as the boat was leaving the dock. This compressed time frame between
final approvals and the commencement of blasting left little to prepare legal
challenges, particularly with respect to the thousands of pages of legal and
permitting documents.
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The number of “take” estimates was increased dramatically between the
proposed and the issued permits. For example, the allowance to harm
dolphins went from over 400 to 18,000. Notwithstanding this exponential
increase, and a plea from U.S. Senator Corey Booker to the head of NOAA, the
public and elected leaders were denied the opportunity to submit comments on
the number of dolphins authorized to be harmed.
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In 2015, the final permit issued by NOAA was significantly flawed, as it
vastly underestimated the number of endangered Fin Whales that the survey would
encounter. NSF had to go back to NOAA in order to get a revised permit – even
while the survey was ongoing—because they exceeded the “take” limit within a
week of blasting.
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COA repeatedly asked NOAA to include the endangered Atlantic Sturgeon in
the analysis of impacts, and was ignored, even while COA submitted numerous
studies that placed this endangered species within the survey area.
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NSF included an abstract for the 2014 expedition which included an
admission that the data they obtained would be “of relevance for hydrocarbon
exploration industry.” The 2015 abstract was edited to state that the data “may
help improve strategies for hydrocarbon exploration in the Gulf [of
Mexico].
The Clean Ocean Zone (http://www.cleanoceanzone.org/) is an
initiative to permanently protect the waters from Montauk to Cape May, NJ; this
legislation would lock out harmful activities and lock a future for a healthy
and clean ocean
