In two federal lawsuits filed in Charleston, South Carolina, the plaintiffs contend the tests, which involve blasting away at the water column for potentially months on end, will harass and kill several marine species, including critically endangered North Atlantic right whales.
The plaintiffs claim the testing permits, issued under the auspices of the defendant National Marine Fisheries Service, Chris Oliver, assistant administrator of fisheries, and Commerce Secretary Wilbur Ross, violate several federal laws, including the Marine Mammal Protection Act.
The Trump administration authorized the seismic air gun survey on November 30, giving five companies the right to conduct the tests in a stretch of ocean extending from Delaware to Florida.
According to court documents, the authorizations allow for nearly 850 combined days of around-the-clock activity, amounting to more than five million total seismic air gun blasts.
Opposition to seismic testing and oil and gas exploration is nothing new for the plaintiffs in the cases or the Southern Environmental Law Center, which filed the lawsuits on their behalf.
In 2015, the Obama administration, pursuing an "all of the above" national energy strategy leaning heavily toward renewables, but also including expanding oil and gas exploration, revealed its own plan to allow exploration off the eastern seaboard.
However, confronted by an outcry from coastal communities, several states and scores of environmental and conservation groups, the Obama administration changed course and actually banned seismic testing off the coast.
But within weeks of taking office, President Donald Trump announced an even more ambitious plan to open nearly all coastal waters to offshore drilling and exploration, rolling back the ban set down in the waning days of the Obama White House.
"I was shocked and dismayed," said Peggy Howell, founder of the grassroots Stop Offshore Drilling in the Atlantic said recently. "Not only that he would encourage drilling off of our coast in the Mid-and South Atlantic, but that he thought it was a good idea to open up nearly 98 percent of the U.S. coastline and we were going to need to fight this battle all over again."
The oil and gas exploration plan inspired widespread consternation in the days and weeks after it was announced. Lawmakers from Myrtle Beach to Beaufort and even from inland communities like Greenville and Columbia panned the proposal, saying it poses too profound a threat to the state's $21 billion tourism industry.
Governor Henry McMaster, a staunch long-time supporter of the president, spoke out against the plan, telling Interior Secretary Ryan Zinke in a January letter that "Every city and town council along the South Carolina coastline has voted to oppose seismic testing and drilling, and I agree with them."
In the past week, McMaster has reiterated his opposition to the Trump drilling plan, and he's been joined by South Carolina Attorney General Alan Wilson, who has said he is "in complete agreement" with opponents of the plan.
“Ignoring the mounting opposition to offshore drilling, the decision to push forward with unnecessarily harmful seismic testing defies the law, let alone common sense,” said Catherine Wannamaker, a senior attorney with the Southern Environmental Law Center.
“An overwhelming number of communities, businesses, and elected officials have made it clear that seismic blasting–a precursor to drilling that no one wants–has no place off our coasts,” she said.
The 16 municipalities suing the Trump administration are Charleston, the surrounding cities of Mount Pleasant, Isle of Palms and Folly Beach, as well as Awendaw, Beaufort, Bluffton, Briarcliffe Acres, Edisto Island, Hilton Head Island, James Island, Kiawah Island, North Myrtle Beach, Port Royal, Pawleys Island and Seabrook Island.
On Monday, Congressman-elect Joe Cunningham, representing South Carolina's 1st Congressional District, told the AP that he backed the legal effort, which would pair with legislative action he plans to take up in the U.S. House of Representatives.
"I'm going to go up to D.C. and fight like hell," Cunningham said. "These lawsuits are one tool in our bag that we're going to use."
The environmental group plaintiffs include the South Carolina Coastal Conservation League, North Carolina Coastal Federation, Defenders of Wildlife, Oceana, Natural Resources Defense Council, Earthjustice, the Sierra Club and the Center for Biological Diversity.
Also joining the lawsuits is the South Carolina Small Business Chamber of Commerce.
The court documents describe the air gun blasts as "some of the loudest sounds that humans produce in the ocean" reaching levels "in excess of 260 decibels."
"For the North Atlantic right whale, one of the most endangered marine mammals in the world, these blasts could mean extinction," the lawsuits say. "Approximately 400 right whales remain, with little more than 100 breeding females left to recover the population. The last twenty months have been devastating for the species. Twenty North Atlantic right whales have been found dead since April 2017 — an unprecedented number of deaths in modern times — and new births have slowed. Only five calves were detected in the 2016-17 calving season; in the 2017-18 calving season, not a single right whale calf was detected."
The plaintiffs say the authorized seismic testing will take place in and near the North Atlantic right whales’ migration path and calving grounds.
"Effects on other species will also be severe," the lawsuits continue. "For example, the authorized surveys will be conducted in areas in the Mid-Atlantic that have one of the highest concentrations of beaked whales observed anywhere in the world.
"These whales, which are among the most sensitive of all marine mammal species to acoustic disturbances, are known to react strongly to loud anthropogenic (human-made) noises," the complaint continues. "In their most severe form, these behavioral reactions can lead beaked whales to strand on beaches or dive abnormally, causing serious injury or death. More commonly, beaked whales flee from disruptive noise, abandoning productive habitat."
The Marine Mammal Protection Act prohibits activities that may disturb, injure, or kill marine mammals, unless the National Marine Fisheries Service authorizes the activities after extensive review.
Even then, the plaintiffs contend, the agency is restrained from giving its approval for an activity unless it finds, among other things, that the activity will injure or disturb only “small numbers” of marine mammals and have no more than a “negligible impact” on each marine mammal species or stock.
"NMFS’s conclusions that the authorized seismic surveys in the Atlantic meet these requirements defy science, law, and common sense," the plaintiffs said. "NMFS violated the 'small numbers' requirement by authorizing each of the five companies to harm, or “take,” up to 33 percent of each marine mammal population," the lawsuits say.
"Applying this threshold, NMFS authorized 91,000 instances of harassment for just one species of dolphin, and aggregate takes of more than 50 percent for at least eight whale and dolphin species.
"These numbers do not comport with any reasonable definition of ‘small’,” the plaintiffs say.
"In total, the authorized seismic surveys could harm 34 species of marine mammals, including five endangered and threatened whale populations, four species of endangered sea turtles, and many species of fish and invertebrates," the lawsuits say. "A substantial body of research shows that seismic air guns adversely affect marine species through disruption of vital behaviors, damage to sensory organs, and even death."
The plaintiffs want the federal court to declare the Trump administration violated nearly half a dozen laws in approving the testing, to vacate the authorizations, and enjoin anyone from conducting seismic surveys off the coast.
They say in addition to the potential disastrous environmental impacts already noted, the National Marine Fisheries Service "failed to prepare an Environmental Impact Statement analyzing the significant adverse impacts of the authorized seismic surveys and instead relied on flawed, outdated portions of a programmatic environmental impact statement from 2014 and an inadequate environmental assessment" to make its decision.
"These analyses failed to consider critical recent information, including the increasingly precarious state of the endangered North Atlantic right whale and new scientific research on the harms seismic air gun blasts cause to a variety of marine life," the lawsuits say. "The agency also failed to consider the cumulative impacts of the surveys, failed to consider reasonable alternatives, and otherwise failed to take the legally required 'hard look' at the impacts of the surveys.
A representative of the International Association of Geophysical Contractors, which represents exploration companies, could not immediately be reached to comment on the lawsuits.
Photo: South Carolina Congressman-elect Joe Cunningham addresses the broad coalition gathered outside the federal courthouse in Charleston. (©Arielle Simmons)
For additional information: