Shallow Measures: International Regulation of Noise Pollution in Our Oceans
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Recently, several researchers and scientists from all over the world released a survey in the journal Science consisting of over 500 studies done on the far-reaching effects of an everyday phenomenon: noise, specifically noise as a pollutant of marine ecosystems.
According to the survey, the soundscape of our oceans is dramatically changing. Climate change has altered geophysical sources of noise, such as sea ice and storms, in addition to affecting populations of noise-producing marine animals. Furthermore, human involvement in the form of vessels, active sonar systems, energy and construction infrastructure, and seismic surveys – just to name a few – are generally on the rise. Depending on the water pressure and temperature, sound can travel for thousands of miles without decreasing considerably in energy. Although research has not yet definitively connected noise pollution with a higher mortality rate for marine animals, scientists are concerned about the long-term effects it could have on our planet’s oceans.
All of this far-reaching, human-generated noise compromises the hearing ability of marine animals, which disrupts their normal behavior processes for finding food, mating and migrating, and communicating with each other. For example, in 2017 the Obama Administration considered the use of seismic airgun arrays to detect oil and gas deposits in the Atlantic Ocean. However, the planned surveys overlapped with the calving and wintering grounds of the North Atlantic right whale, whose behavioral patterns heavily rely on sound. This is especially true in vulnerable populations like mothers and their calves. The North Atlantic right whale has been designated a critically endangered species on the International Union for Conservation of Nature’s Red List of Threatened Species, and scientists such as Dr. Scott Kraus, Vice President of Research for the New England Aquarium, have identified noise pollution amongst the factors that impede the species’ resurgence. This survey prompted a number of articles rightfully concerned about the impact of noise on delicate marine ecosystems. One author went a step further, alleging that international legislative communities are not paying enough attention to this troubling and allegedly easily-solved issue.
In 2008, the European Union (“E.U.”) drafted the first version of the Marine Strategy Framework Directive (“MSFD”), which not only re-affirmed old and established new protected areas for marine conservation efforts, but also urged its member states to create legislative strategies for the development of marine conservation programs. In Article 1, the MSFD set forth a framework for E.U. member states to follow to “achieve or maintain good environmental status in the marine environment” by the year 2020 at the latest. Noise is included as a concern even in the very first version of the MSFD: in Chapter 1, Article 3(5)(b) of the 2008 version, the MSFD identifies “noise” as a possible anthropogenic pollutant, and Annex I (11) stipulates that in areas of “good environmental status, introduction of energy, including underwater noise, is at levels that do not adversely affect the marine environment.” In 2011, as part of the MSFD, the European Parliament and Council of the European Union created a Directive urging member states to require certain private and public projects likely to have a substantial effect on the environment to submit assessments of the potential environmental impact to the government of their home State. According to Annex IV of the Directive, part of the assessment should include estimates of expected residues and emissions from the operation of the project, which explicitly include noise. In the same year, “TG Noise,” a technical Group on underwater noise, was established as a Commission expert sub-group focused on the successful implementation of the MFSD by E.U. member states. TG Noise has concentrated on two types of underwater sound, differentiated by intensity and frequency, and has even issued a guide to policymakers to create monitoring schemes for maintaining or reducing levels of underwater noise. It continues to issue reports on MFSD implementation projects regarding noise pollution.
The issue surrounding noise pollution and its impact on the marine environment has not remained within the confines of the E.U.; it has become a topic of conversation amongst global lawmakers. In 2017, the United Nations held an Ocean Conference in New York City, which discussed, among other pollutants, the impact of noise. The European Union has spearheaded these conversations, submitting findings on the effects of anthropogenic underwater noise on behalf of some of its member states and hosting panels of biologists and researchers to promote awareness for the nineteenth meeting of the U.N. Conference on the Law of the Sea (“UNCLOS”).
Despite the European Union’s efforts to advocate for clear marine environmental policies, the MFSD and its accompanying framework are not legally binding—it is up to individual member states to implement legislation at the national level to carry out the goals and policies set forth in the MFSD. However, treaties and conventions promulgated by the U.N. are binding on its members, and may be the key to addressing noise pollution on a widespread, international level. For example, although ocean-going traffic is recognized as one of the key contributors of marine noise pollution, the International Convention for the Prevention of the Pollution of Ships (“MARPOL”) never mentions noise as a potential pollutant, though it does consider noxious liquid substances, sewage, and greenhouse emissions. Without explicit recognition of noise as pollution worthy of legislative consideration, the 164 members of UNCLOS are under no obligation to implement noise pollution regulation into their national policies. If MARPOL, however, was revised to include noise as a pollutant, the amendment – unlike the Directives of the E.U. – would have binding legal force. Given its legal status and the relative ease of amending pre-existing relevant treaties, one scholar has argued that amending MARPOL – to include noise as a pollutant – is the best avenue for the international legal community to acknowledge and regulate one major source of marine noise pollution.
Dr. Simpson, one of the minds behind the Science survey and an underwater bioacoustics researcher, commented, “Noise is about the easiest problem to solve in the ocean… We know exactly what causes noise, we know where it is, and we know how to stop it.” Simpson and his colleagues suggest that new technological advances should make dampening anthropogenic noise even easier than ever before, noting that updating ships with more efficient propeller systems or electric motors, as well as implementing less tech-reliant solutions, such as re-charting shipping lanes and reducing shipping speed, could make a substantial impact. These simply stated solutions, however, could come with far-reaching costs that could serve to increase prices for goods and drive up tariffs, as well as slow trade.
The oceans belong to everyone, and therein lies the problem. The potentially expensive consequences of these scientists’ proposed solutions drive away public support from addressing noise pollution. One scholar has suggested offsetting costs by implementing regulatory systems that incentivize vessels to travel by convoy, or to use fewer, larger vessels for shipping. Regardless of the specific measures that may be taken, without the backing of an international community to collectively approve both legally binding legislation and the means to enforce it, it is difficult to bring about meaningful change. If we truly care about the diversity of our planet’s marine ecosystems, we as a worldwide community have to evaluate just how far we are willing to go in order to preserve them.
About the Author: A 2L J.D./L.L.M. candidate at Cornell Law School, Victoria Pan grew up in sunny San Diego, California, right by the Pacific Ocean. She received a B.A. in English Literature from Belmont University, and in addition to her work at JLPP, she serves as the President of the Briggs International Law Society and is currently an associate at the International Human Rights: Litigation and Advocacy Clinic.
Suggested Citation: Victoria Pan, Shallow Measures: International Regulation of Marine Noise Pollution,Cornell J.L.& Pub. Pol’y: The Issue Spotter (Mar. 26, 2021), https://live-journal-of-law-and-public-policy.pantheonsite.io/shallow-measures-international-regulation-of-noise-pollution-in-our-oceans/.