Document Type
Article
Publication Date
2025
Abstract
The late 1970s and early '80s saw a regime shift in wildlife protection under the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA). That shift may be impeding the recovery of cetaceans (whales, dolphins, and porpoise species) in ways that are yet underexplored. As enacted, the MMPA and ESA established a conservation framework designed to reduce, to the fullest extent possible, "takes" of protected species. Between 1978 and 1982, a series of amendments to both statutes introduced a complex web of incidental take authorizations designed to ensure Congress' initial push for wildlife conservation would not impede economic growth and development. Today, mitigation requirements implemented within incidental take authorizations form the basis for most federal regulatory efforts to alleviate threats to cetaceans. Despite their weighty role in cetacean conservation, few studies examine the National Marine Fisheries Service's (NMFS) authorization of incidental takes of cetaceans. This Article-focusing on whales-examines NMFS' implementation of three types of incidental take authorizations: ESA Section 7 Incidental Take Statements, MMPA Section 101(a)(5)(A) Letters of Authorization, and MMPA 101(a)(5)(D) Incidental Harassment Authorizations. We identify three drawbacks to the incidental take authorization system. First, Congress never intended take authorizations to serve as the primary tool to mitigate harms to species, yet they seem to be playing that role. The incidental take frameworks are structurally inadequate to mitigate anthropogenic harms to cetaceans to the extent necessary to facilitate species recovery. Second, increasing numbers and sizes of incidental take authorizations paired with an inadequate consideration of cumulative impacts during the authorization process may contribute to an excess of authorized takes. Third, incidental take authorizations fail to protect previously occupied and data-deficient habitats whose protection may be necessary for species recovery. Though we focus on whales, the lessons learned from this analysis have implications for a wide variety of taxa. This Article calls for a drastic reformulation of policy approaches to recovery and conservation under the MMPA and ESA. First, we suggest ideas to bring NMFS implementation of the Acts back in-line with the precautionary approach intended by Congress when the statutes were first passed. Second, we suggest a greater utilization of offsets as a means to protect data-deficient or unoccupied habitat. Finally, we stress that more proactive measures be taken outside of the confines of the ITA frameworks to protect cetaceans.
Recommended Citation
Alexander Carbaugh-Rutland, Jessica Owley, and Kenneth Broad, The Ironically Important Role of Incidental Take Authorizations in Whale Conservation, 44 Stan. Env't L. J. 167 (2025).