A draft proposal by federal regulators to curtail public participation and review of fisheries management decisions threatens to hurt both the fish and fishermen of the Gulf of Maine. Instead of streamlining public involvement for the better, the changes, proposed by the agency charged with overseeing commercial fishing in New England, the National Marine Fisheries Service, could silence key ocean users and groups, including fishermen, environmentalists and coastal communities.
Since 1970, the United States has analyzed and considered the effects of federal programs and actions on the environment through the National Environmental Policy Act. These reviews have educated decision makers and the public about the consequences to air and water quality, wildlife habitat, endangered species and ecosystems from proposals ranging from permitting new construction projects, like dams or LNG terminals, to designation of parks or wilderness areas to oil and gas leasing. They routinely produce stronger projects that address the concerns of the communities affected by them and can save millions of taxpayer dollars. Despite that track record, NEPA sometimes comes under attack from those unhappy with the increased scrutiny that the review process brings to federal projects or actions.
Sadly, the newest attack on NEPA comes from the government itself in the form of changes NMFS proposes to make to fisheries law. In 2007, Congress amended our nation’ s primary ocean fishing law, the Magnuson Stevens Act, and directed NMFS to streamline its procedures while preserving its duty to do careful environmental reviews on fishery management decisions.
Instead of streamlining its procedures, however, NMFS has proposed new rules that create a more complicated process. The proposed rule shortens public comment periods, cedes NMFS’ s authority for environmental review to regional fishery management councils and creates loopholes for actions that would not be subject to any environmental review.
Ironically, this proposed rule may hurt fishermen more, including those in Maine. The proposed rule shortens public comment periods on management changes from a minimum of 45 days — as NEPA requires — to as little as 14 days. One would hope that 14 days doesn’ t come during shrimp season.
Even worse, under the proposed rules, if a fisherman doesn’ t raise an objection to an issue with the fishery management council, NMFS won’ t even listen to his issue or suggestion, even if he or she is able to make the 14-day cutoff. That means the input of some of the best people who should be commenting on fishery management measures, measures that could directly affect their livelihood, might be excluded.
NEPA has never required that federal agencies choose the best environmental approach. It only requires federal agencies to analyze and consider a full range of alternatives. It is absurd to change the NEPA process to exclude the hard-working people that have the most to lose. We also stand to lose the best solutions that protect the environment and allow for profitable and sustainable fishing practices.
The proposed changes also divest too much of NMFS’ s obligation under NEPA to the regional fishery management councils, giving too much power to those who have the time and resources to attend council meetings. These councils are an important and integral part of fishery management because they represent the interests of the states and fishermen. Members of the councils have vast knowledge of fisheries, but they are not experienced in environmental review and some are conflicted by financial interests in commercial fishing. Under the proposed rule, the councils have almost complete authority for the scope and extent of the environmental review. This authority should lie squarely in the hands of NMFS as required by NEPA and Congress.
The proposed rule from the federal fisheries regulators to limit public participation in fisheries management and cede its obligation under NEPA to the regional fishery management councils may not be deliberate but it is certainly wrongheaded. It shouldn’ t be too much for NMFS to simplify its NEPA rules without sacrificing the goals of informed public debate and agency decision making other agencies do it all the time.
This proposed rule is a regulatory discard: we need to throw it back and reset the line.
Sean Mahoney is vice president and director of the Conservation Law Foundation’ s Maine Advocacy Center.