SC Cities and Small Business Chamber Push Back on Objections To Preliminary Injunction on Seismic Testing
March 29th, 2019
By Frank Knapp and SC Small Business Chamber of Commerce Interns
This week the South Carolina Environmental Law Project (SCELP) filed a response to objections to our motion for a preliminary injunction in our court case on the Incidental Harassment Authorizations (IHAs) issued by the National Marine Fisheries Service (NMFS). The IHAs are the final step before the Bureau of Ocean Energy Management can approve permits for five seismic testing companies to start exploration for oil in the Atlantic.
Our thanks to Amy Armstrong for her excellent work in crafting our response to the NMFS and the oil/seismic companies claiming that a preliminary injunction is not justified.
You can read the SCELP filing here.
Our complaint filed in December of last year by 16 South Carolina coastal cities and the SC Small Business Chamber of Commerce asserts, among other things, that seismic airgun blasting in the Atlantic will cause economic harm to the ecotourism, commercial fishing and recreational fishing industries. It also cites the possible threat of disturbance of deteriorating cannisters of conventional and chemical weapons that litter the ocean floor.
The SCELP response includes addressing these issues:
This challenged seismic testing activity will most certainly negatively affect these dolphin species, driving them away from the area and consequently harming the ecotourism businesses that have submitted declarations in this case. Further, the documented behavioral responses of driving fish away would harm fishermen’s ability to catch them. (p.3)
…the potential loss of a business satisfies the irreparable harm requirement for the issuance of an injunction, and demonstrates the inadequacy of a remedy at law….The Plaintiffs presented credible evidence, based in part on NMFS’ own decision documents, that they would experience a loss of business if the seismic testing activities proceed. (p.7)
The Defendants’ falsely state that the concern regarding munitions disturbance “was not raised to NMFS during the administrative process.” ECF No. 221, p. 35. In fact, James Barton, a munitions expert and Defense Wastes Policy Advisor submitted detailed comments to NMFS through its webportal regarding the dangers of munitions disturbance resulting from seismic testing on July 18, 2017.4 Exhibits A & B. The comment period closed on July 21, 2017. 82 Fed. Reg. At 31,048; AR 648. Specifically, Barton explained that seismic airguns “have ample power to disrupt severely corroded yet otherwise stable concentrations of sea dumped munitions, thereby inviting dispersal of fragmented chemical weapon filler content” which cause chemical burns to dolphins, beachgoers and fishermen who encounter these fragmented munitions. (p.8)
When Federal Court will rule on the motion for a preliminary injunction is not known.
However, what we do know is that SCELP has made a strong argument for the Judge to block the seismic permits from being issue until a ruling is made in our lawsuit.