In 1972, Congress did something amazing: they saw a problem and they decided to try to fix it. With a new law. Passed by huge bipartisan majorities in a Democratic Congress and signed by a Republican president.
In this case, the problem was that marine mammals – dolphins, seals, sea lions, otters and more – were being killed in large numbers, either because they got in the way of the fishing industry, or for their fur. So that year, Congress passed the Marine Mammal Protection Act, a historic and visionary law that forbade the “taking”–that is, the harassing, hunting, capturing or killing – of all marine mammals (with exemptions for Native peoples and under certain circumstances for industry).
The law wasn’t just remarkable for protecting these animals (which, by the way, it has: no marine mammal species has gone extinct since it was passed). It’s worth celebrating this law in its 50th year because it put forward new ideas in environmental law. One was the precautionary principle — the idea that actions whose consequences are unknown should be avoided until more is known, and not rushed. The other contained the idea of ecosystems —that a law protecting individual species had to also protect the health of the environment in which they lived.
But now, the United States, which has led the world in marine mammal protection and ocean preservation, is falling short, possibly violating the terms of this law, by not ensuring a healthy ocean environment for the mammals that Congress mandated we protect.
By not addressing the ongoing threats to the ocean from climate change, overexploitation of its resources, and ever-increasing industrialization, we’ve created an ocean where the MMPA is no longer anywhere near enough to truly protect marine mammals. We are making it too difficult for them to survive, despite the law’s remarkable successes over the last few decades.
(I realize there has been a lot of ocean stuff recently, but it’s what I’m interested in lately, and also I saw two humpback whales (at least!) and a dolphin over the weekend so it’s where my head is at! If there is anything you’d particularly like to read about, or any questions you have, please let me know!)
“Part of me would say that any policy instrument or statute or any regulation you could draft would have a hard time keeping up with the increasingly rapid pace of change,” said Andrew Read, a marine conservation biologist at Duke University who serves on the Marine Mammal Commission.
Which is not to say he’s not grateful for it and for other bedrock environmental laws, like the Endangered Species Act, which protects mammals and non-mammals alike.
When the MMPA was passed, marine mammals really did need the help, and the pace and scale of change were not yet well understood. Whales had been hunted for centuries (and commercial whaling was still legal until 1986); seals, sea lions and otters were largely gone from our coastlines, harvested for their fur or killed to bolster fishing hauls; dolphins were dying by the thousands in tuna nets. The removal of marine mammals and other ocean animals had changed how ecosystems worked (or didn’t), with effects that we still don’t fully appreciate or are just learning about.
Now, dolphin bycatch in tuna nets has declined by about 99 percent, but there are still problems. There may be more elephant seals on the California coast than at any other time since people arrived on this continent. Marine mammals in U.S. waters seem to be doing better than marine mammals elsewhere in the ocean.
And the MMPA has protected the ocean in ways that are essential for human health, too. Even if you never think about marine mammals, even if you have never seen the ocean or heard of this law, the animals it protects help provide the very air you breathe. Whales in particular scatter nutrition for plankton throughout the ocean, from the surface to the depths, via their waste. These plankton produce nearly half of the world’s oxygen.
Those nutrients and that plankton also form much of the base of the ocean food web, so without healthy marine mammals, there’s no fish, shellfish or other seafood, which about three billion people around the world depend on for crucial nutrients, and which provide income for about 12 percent of the global population.
In some places, some people think there are too many marine mammals – gray and harbor seals on Cape Cod, in particular, are blamed for declining fisheries and growing congregations of white sharks (though the risk of shark attacks is still very low, despite media narratives). Some have advocated culling gray seals to keep the sharks away and protect the fisheries. In Oregon, state officials have culled hundreds of sea lions over the years in an effort to restore the salmon and steelhead populations, under a 2018 amendment to the law.
“You could kill a lot of gray seals without seeing a lot of impact on groundfish catches because we screwed that up so bad,” said Dr. Read, referring mainly to the many collapsed fisheries in the Gulf of Maine, which is warming faster than almost any part of the global ocean, complicating (if not preventing) recovery of these fisheries.
Unfortunately, the MMPA’s protection has been overwhelmed by the destructive effects of human activity. Ongoing threats to the ocean from climate change, overexploitation of resources and ever-increasing industrialization in the ocean– from ship traffic, oil and gas extraction, industrial fishing and more – mean it’s no longer enough to not “take” marine mammals – the oceans themselves must be kept healthy – safe, wild, alive – for them to thrive.
Warmer, more acidic waters; declining oxygen levels; harmful algal blooms; nutrient pollution from fertilizer runoff and wastewater; plastic pollution; oil and chemical spills; noise; ship strikes; overfishing; entanglement in fishing gear — all of these make it harder for marine mammals to eat, communicate, breed, play, and survive. (The video above is of a sneaky sperm whale stealing fish off an Alaskan long-line fishing boat! Nice job buddy!)
Some populations – notably Pacific gray whales – are crashing. The North Atlantic Right Whale is on the path to extinction. Dr. Read said, “The whales are telling us something: not that we are killing them directly but we are killing them indirectly.”
The whales are telling us something.Dr. Andrew Read, Marine Mammal Commission
Having a healthy ocean, though, isn’t just a matter of letting the animals have their way. Coastal fishing communities should not bear the cost of protecting the oceans alone or at all. Marine protected areas have actually been shown to help fisheries, but making regulations overly restrictive or requiring expensive equipment can pit conservationists and fishing communities against each other when they should be natural allies, since both value and appreciate healthy oceans.
“We need to build in flexibility wherever we can and actually manage competing interests, not just talk about it,” Dr. Read said. “We need more investment in things like marine spatial planning, and ways to mitigate conflicts when they arise and we don’t have a lot of that right now,” he said.
But we will need to, as new industries, like deep-sea mining, may be permitted in large parts of the ocean; as fish confound existing national and international management strategies by swimming out of their historic ranges; as Arctic sea ice melts, and more and more ships begin to travel through a part of the ocean that is one of the few remaining refuges for all kinds of animals.
Whales and dolphins and seals and other marine mammals have been around, in some shape or another, for about 30 million years. What an awful, self-destructive use of our power it would be to wipe them out in just a few hundred.
Congress and state governments need to uphold the Marine Mammal Protection Act by protecting the ocean itself. In the long-run, this means significantly reducing and eventually eliminating greenhouse gas emissions. In the short-term, they should enact speed limits for ships, mandate fertilizer reduction to reduce runoff and ocean dead zones; make the plastic industry ultimately responsible for its products; protect more of the ocean as marine reserves or marine protected areas, with the cooperation and consent of Indigenous groups and fishing communities.
Protecting the oceans doesn’t happen by accident – it takes the kind of hard effort that is so easily taken for granted. Congress helped marine mammals survive for the past 50 years when they passed the MMPA in 1972. They need to do more of that hard work to help them survive in the future we’ve created. And it’s up to us – as voters, as residents of this planet – to make sure they do.
This was originally posted on Tatiana’s Substack News from a Changing Planet, a free twice-monthly newsletter about what on Earth is happening, with articles and essays about climate change and the environment.