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Bear in the Woods: Environmental Law Blog

Wednesday, June 25, 2014

Lobsters making the case on warming oceans

Drastic declines in New England lobster larvae over the past year may be linked to rising ocean temperatures, not over-fishing, warns Dr. Rick Wahle of the School of Marine Science at the University of Maine.

Dr. Wahle and his crew of divers, who track lobster harvest data for the American Lobster Settlement Index, have seen a recent “widespread downturn” in the populations of larval lobsters. Although the adult population of lobsters is unchanged, Dr. Wahle’s research suggests that oceanographic changes are responsible for the sudden decline in lobster eggs.

Young lobster populations are approximately 50 percent of what they were in 2007. Recently, summer waters have been warmer than the lobster comfort zone (below 68° F), creating stress for lobsters. Complicating matters for lobster populations, warmer waters off the New England coast also aggravate a shell disease that eats away at lobster shells. The disease can be fatal to the crustaceans or make them unmarketable for selling live. As a result of the temperature changes affecting their habitat, lobster populations have been pushing north into areas that were once too cold for lobsters to thrive. 
Illustration of the water cycle and its interaction with the 
greenhouse effect.  The upper-left insert indicates the 
relative increase of potential water vapor content in the air 
with an increase of temperature (roughly 7% per degree).  
The white curls illustrate evaporation, which is compensated 
by precipitation to dose the water budget.  The red arrows 
illustrate the outgoing infrared radiation that is partly 
absorbed by water vapor and other gases, a process 
that is one component of the greenhouse effect. 
The stratospheric processes are not included in this figure.  
Reproduced with authorization from: Myhre, G., D. Shindell, 
F.-M. Br√©on, W. Collins, J. Fuglestvedt, J. Huang, D. Koch, 
J.-F. Lamarque, D. Lee, B. Mendoza, T. Nakajima, 
A. Robock, G. Stephens, T. Takemura and H. Zhang, 
[Stocker, T.F., D. Qin, G.-K. Plattner, M. Tignor, S.K. Allen, 
J. Boschung, A. Nauels, Y. Xia, V. Bex and P.M. Midgley (eds.)]. 
Cambridge University Press, Cambridge, United 
Kingdom and New York, NY, USA. 

Over the past 50 years, the ocean has borne the brunt of climate change. Sea surface temperature changes are among the dangers associated with climate change. The average temperature of the global ocean has increased down to depths of at least 3,000 meters. See Intergovernmental Panel on  Climate Change (“IPCC”), Contribution of theWorking Group I to the Fourth Assessment Report of the IPCC, 408-21 (S. Solomanet l. eds. 2007).

In its most recent report, the IPCC estimated that oceans absorb approximately 90 percent of the heat added to the climate system, and the multinational experts report with high confidence that it is very likely that the increase in global ocean heat content observed has a substantial contribution from human activity. See IPCC, Climate Change 2013: The Physical Science Basis, Ch. 10.901-03 (Cambridge University Press 2013).  

Humans have an impact on water temperature in ways that extend beyond climate change as well.  When an industry uses water for processes such as cooling, the facility often discharges water that is hotter than the temperature of the receiving waters. When a power plant, for example, discharges heated water to a river, it can create a thermal plume or area of elevated temperature within that river. This human-caused change in the temperature of surface water is known as thermal industrial pollution. The combination of thermal industrial pollution with other forms of water pollution such as chemical or biological contamination can create severe stresses on aquatic ecosystems. See IPCC 2013, Ch. 10, at 869-928. In local areas, it can also intensify the effects of higher temperatures caused by climate change.

The EPA has the power to limit thermal industrial pollution because heat is defined under the Clean Water Act as a pollutant. 33 U.S.C. § 1362 (6).  Section 301(a) of the Clean Water Act prohibits the discharge of any pollutant by any person unless otherwise permitted under the Act. 33 U.S.C. § 1311(a). 

In order to qualify to release these pollutants, a discharger must obtain a National Pollutant Discharge Elimination System (NPDES) permit approved by EPA or a qualified state agency.  33 U.S.C. § 1342. The NPDES permit contains limitations on the quantity or concentration of pollutants, including heat, which the facility can discharge into a natural water body. 33 U.S.C. § 1342. 

Courts have recognized the importance of the direct effects of thermal industrial pollution in reversing approval of a permit for construction of two nuclear power plants. Duke Power vs. Carolina Environmental Study Group, Inc., 438 U.S. 59, 74 (1978), citing United States v. SCRAP, 412 U.S. 669, 686-87 (1973). (“Certainly the environmental and aesthetic consequences of the thermal pollution of the two lakes in the vicinity of the disputed power plants is the type of harmful effect which has been deemed adequate in prior cases to satisfy the ‘injury in fact’ standard.”)  

In order to fully account for the harm to water bodies from the effects of higher temperatures, it is important to consider the effects of both climate change and thermal industrial pollution together. Fortunately, federal law requires EPA to do just that when it conducts environmental reviews as part of its NPDES permitting process for new sources. For industrial facilities considered “new sources” under the Clean Water Act, 33 U.S.C. § 1316(a)(2), EPA must conduct an environmental review under the National Environmental Policy Act (NEPA). 33 U.S.C. §1371(c)(a). NEPA requires the federal agencies to fully consider the environmental impact of actions it permits by considering, among other things, the “cumulative impacts” of all actions that could impact the environment. 40 C.F.R. Parts 1500-1508; see 42 U.S.C. § 4332.

In a draft guidance document published in 2010, the Council on Environmental Quality recognized the importance of incorporating the effects of climate change on the environment when conducting an environmental review under NEPA. Council on Environmental Quality, 2010. DraftNEPA Guidance on consideration of climate change and GHG emissions.  Unfortunately, the cumulative effect of the impact of climate change is not always fully analyzed in NEPA reviews. See Patrick Woolsey, Consideration of Climate Change in Federal EISs, 2009-2011, Centerfor Climate Change Law, Columbia Law School, July 2012, at 15-16. By incorporating a robust analysis of the effects of climate change into its NEPA analysis for NPDES permitting decisions, EPA can better ensure that thermal industrial pollution does not compound the effects of climate change and exacerbate the plight of lobsters and other plants and animals that rely on a stable environment. 

Leading British economist Lord Nicholas Stern warns that we “grossly underestimate” the economic damage wrought by climate change. Indeed, lobsters are not the only aquatic organism that is sensitive to water temperature. The trout species that call Pennsylvania’s streams and rivers home also suffer stress at higher water temperatures. And, in fact, warming waters are but one of many of the impacts of climate change that can adversely affect both our environment and our economy.

To minimize those negative effects, we must not only address the direct causes of climate change, but we must also minimize other activities having negative effects on ecosystems. Although it will not stop climate change, if EPA closely monitors offshore and coastline discharges of heated water or other pollutants throughout the East Coast, it may improve the likelihood of survival for temperature-sensitive species like the New England lobster and Pennsylvania’s trout species. 

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