UCLA Journal of Environmental Law and Policy

The public is beginning to recognize the true impacts of ocean noise on marine mammal behavior. In particular, the shipping industry, consisting of thousands of large vessels and tankers, contributes significant noise pollution by emitting loud, constant, droning, low-frequency sounds. The scientific literature has revealed the importance of reducing these noise impacts to ensure the survival of numerous depleted marine mammal populations. Under the Marine Mammal Protection Act, the Endangered Species Act, and the National Environmental Policy Act, the current legal regime is capable of addressing noise impacts from shipping activities, but these laws have not yet been utilized to regulate the industry. Despite the apparent ability to treat shipping noise as a “take” under the MMPA and ESA, NOAA Fisheries has not taken regulatory actions to enforce those take prohibitions against the shipping industry. While the availability of the MMPA and NEPA as tools for enforcement through litigation depend on the existence of a federal agency action, the ESA can be enforced directly against shipping vessels that disturb marine mammals through noise production. This paper proposes that legal action against shipping companies under the ESA for a “take” through ocean noise could force the federal government to initiate enforcement of the shipping industry under its delegated authority. Alternative advocacy positions exist as well, including lobbying Congress to add a citizen suit provision to the MMPA or enact a new statute requiring certain vessel design standards intended to reduce noise output. However, given the modern Congressional gridlock, ESA litigation appears to be the most viable strategy available to advance the regulation of shipping noise.