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Greenpeace, U.S.A. v. Evans

Citation: 17 ELR 21207
No. No. C86-1676R, 688 F. Supp. 579/(W.D. Wash., 06/12/1987)

The court holds that the National Marine Fisheries Service (NMFS) violated the National Environmental Policy Act (NEPA) when it issued a permit under the Marine Mammal Protection Act (MMPA) authorizing scientific research on killer whales in Puget Sound without preparing an environmental assessment (EA) or environmental impact statement (EIS). The permit allowed harassment of the estimated 86 whales in Puget Sound for research analyzing the impact of harassment on the whales' behavior, and authorized the collection by dart biopsy of 45 tissue samples over a five-year period for the purposes of studying contamination, diet, and group integrity. The court holds that NMFS unreasonably concluded that the issuance of the permit qualified for a categorical exclusion from NEPA's requirement that an EA or EIS be prepared for major federal actions significantly affecting the environment. Although the National Oceanic and Atmospheric Administration (NOAA), NMFS's parent agency, has determined that permits for scientific research under the MMPA usually qualify for a categorical exclusion, NOAA also requires the preparation of an EA or EIS where the activity could result in any significant impacts. The court holds that plaintiff has demonstrated that the proposed research may have significant effects on the quality of the environment according to factors set out in the Council on Environmental Quality's NEPA regulations. First, the effects of the research are highly controversial. All but one of the commenters on the proposal opposed it, and among the critics were scientists knowledgeable in killer whale behavior. The regional NMFS office and the National Marine Mammal Laboratory expressed concerns about the darting process and the impact of the harassment on the whales' social structure. The many restrictions and conditions placed on the permit also point to the conclusion that the potential effects were controversial. Second, the potential effects are highly uncertain and may involve unique or unknown risks. Although NMFS concluded that no adverse impacts on the Puget Sound whale population or its ecosystem were anticipated, whale behavior specialists and NMFS personnel disagreed. Moreover, the administrative record is deficient on the subject of potential risks, since the final decision memorandum does not address the objections. Rather than addressing the uncertainty posed by the research, NMFS chose to impose restrictions on the permit, assuming the restrictions would resolve any problems. This approach was rejected by the Ninth Circuit in Jones v. Gordon, 15 ELR 20920, which also involved the NMFS's issuance of an MMPA permit for the taking of killer whales. Third, the NMFS's action could set a precedent for future proposals involving invasive techniques. Finally, the proposed research may result in cumulative impacts.

Counsel for Plaintiff
Stephan C. Volker
Sierra Club Legal Defense Fund, Inc.
2044 Fillmore St., San Francisco CA 94115
(415) 567-6100

Counsel for Defendants
Michele Kuroc
Civil Division
Department of Justice, Washington DC 20530
(202) 633-2000