Wednesday, May 26, 2010

Verdict out - Antarctic krill fishery is sustainable because MSC says so

Yesterday (25 May 2010) MSC released the legally sounding "Supplemental Decision of the Independent Adjudicator on Remand in the Matter of an Objection to the Final Report and Determination of the Proposed Certification of the Aker Biomarine Antarctic Krill Fishery under the MSC Principles and Criteria for Sustainable Fishing".

The "Decision" is by the Independent Adjudicator (on staff to MSC) - lawyer Eldon V.C. Greenberg.

In his 4 page ruling he reaches the conclusion "In sum, after consideration of Moody's Response to Additional Remand, I conclude that the response is "adequate to meet the matters raised in the remand" within the meaning of Section 4.9.4(a) of the Objections Procedure, and I confirm the determination of the certification body with respect to PIs 1.2.2 and 2.5.3. I conclude that Moody has cured the procedural defect identified in my remand of May 5, 2010 and provided a reasonable explanation for its decision not to alter the scoring of the PIs in question in light of Watters 2009."

See post on this blog on May 7 for background

So Moody wins another one and MSC can check an additional sustainable fishery to its growing world-wide list.

But what do conservation bodies think?  The influential Pew Environmental Group does not like it one little bit.  The Pew Environment Group is the conservation arm of The Pew Charitable Trusts, a US-based non-governmental organization that applies a rigorous, analytical approach to improving public policy, informing the public and stimulating civic life.

PR Newswire reports that "The Pew Environment Group today criticized the decision by the Marine Stewardship Council (MSC) to certify Antarctic krill. The certification gives the false impression that the entire fishery for Antarctic krill is sustainable when in reality it is not."

Gerald Leape, director of Pew's Antarctic Krill Conservation Project (AKCP) points out the main grounds for objecting to the certification of the Aker krill fishery as sustainable:
  • MSC's standards allow for the certification of a single operator in a fishery. In general, this runs contrary to its mission of ocean protection. If a few ships are acting responsibly but the vast majority are not, the target population could still be at risk of being overfished.  
  • Climate change impacts to species are not considered by MSC methodology. As krill have been proven to be susceptible to climate change, the impact of warming temperatures on the population must be considered, if fishing is to be sustainable.
  • Numerous uncertainties are associated with the determinants and drivers of krill population size. Though extensively studied, scientists are still learning what affects krill population size. Without this knowledge, it is difficult to set appropriate catch limits.

PR Newswire reports Leape saying: "Unfortunately, perception is reality...The MSC's label falsely advertises the message that all krill are sustainably caught and that consuming krill-based omega 3 supplements or purchasing farmed salmon raised on krill meal is okay. Nothing could be further from the truth."


Tuesday, May 11, 2010

Ross Sea Antarctic Toothfish fishery MSC certification in question

FIS is reporting today that MSC Independent Adjudicator Michael Lodge has questioned the scores Moody Marine has assigned to six performance indicators for the Ross Sea Antactic toothfish fishery following an objection made by the Antarctic and Southern Ocean Coalition (ASOC).  Lodge however dismissed eight of the ASOC objections and also rejected an objection against the definition of the “Unit of Certification”. 

See previous blog entry on this fishery:

FIS reports that ASOC is calling Lodge’s remand a “victory for science and the Antarctic marine environment.” The Coalition argued that the dearth of data on the stock and lack of scientific rigour in the assessment did not support certification of the fishery as sustainable.  Also supporting the objection were the Centre for Biological Diversity and 39 marine scientists under the collective name of Friends of the Ross Sea Ecosystem (FORSE).

FIS reports ASOC Executive Director James Barnes as stating “This fishery should never have been allowed to undergo full assessment in the first place - there are simply far too many unknowns about this highly vulnerable stock, which is precisely why the fishery is officially classified as 'exploratory' by CCAMLR....The adjudicator has agreed with ASOC that Moody cannot justify its scores for a number of crucial indicators.”

Moody Marine has 10 days to issue a “reasoned response” regarding the remand but can apply to Lodge for an extension.  The objections process will be finalised once Lodge considers the response and makes his decision on whether the fishery should be certified or not.  No fishery has thus far been denied MSC certification based on an objection.

Link to FIS article

Friday, May 7, 2010

Objection to Antarctic Krill fishery certification as sustainble by MSC

On December 4 2009 the Antarctic and Southern Ocean Coalition (ASOC, a coalition of over 200 non-governmental organizations in fifty countries concerned with the preservation of the Antarctic environment) filed a notice of objection with MSC regarding the sustainability determination of Moody Marine with regard to the Aker Biomarine Krill Fishery.

The Aker Biomarine pelagic trawl krill fishing fleet is a major participant in the Antarctic krill fishery in Area 48 in the Southern Ocean waters around the Antarctic Peninsula and South Georgia. ASOC and its partner the Pew Antarctic Krill Conservation Project have been advocating for management reforms in the fishery and have concerns about the Aker Biomarine krill fleet’s role in that fishery.

The MSC report by Moody Marine, together with comments from two independent reviewers and Moody’s responses, were published on their website on 6 August 2009.

One of the reviewers, Stephen Nicol, is an acknowledged world expert on krill in the Antarctic. He made a number of critical comments on the report which Moody Marine mostly dismissed. For example, he stated that “There is little doubt that the data being collected are insufficient to detect impacts of fishing – and there is no mechanism to alter the krill management approach even if impacts were detected.” Moody Marine responded that “The reviewer is correct, but his concerns do not render the harvest strategy ineffective, in our opinion.”

In another instance Nicol comments that he is “unaware of any evidence that exists that the [existing management] strategy is effective other than the absence of an obvious stock collapse. Nicol argues for a lowering of the scores in a number of instances, for example “Because of the lack of a mandatory observer scheme, the shortfalls of the CEMP [CCAMLR Ecosystem Monitoring Program] and the uncertainties over bycatch it is difficult to see how information/monitoring can be considered adequate.” Again, Moody Marine is dismissive.

Nicol concludes that “Overall, the assessment probably falls somewhat short of what I might hope given the MSC principles. There are two reasons for this. Firstly the operator has a very short history in the krill fishery and has not yet had a chance to establish its credentials or to fully examine the impacts of its new technology [mid-water trawl continuous fishing system]. This suggests to me that this proposal is slightly premature. Secondly, the proposal assumes that the procedures implemented by CCAMLR in pursuit of its ecosystem approach to management are sufficiently robust to enable the krill fishery to meet the MSC criteria.” Moody Marine considers that although “The harvest strategy has not been fully tested, … monitoring is in place and evidence exists that it is achieving its objectives.”

The outcome of the review resulted in Moody adjusting its scoring as follows:

1.2.1: Score reduced to 90
1.2.2: No change
2.5.1: Score increased to 100
2.5.2: Score reduced to 75
2.5.3: No change

The change in score for PI 2.5.2 has resulted in a new Condition – Condition 3 at the end of this document.

The basis for a 100% score under 2.5.1 is that “There is evidence that the fishery is highly unlikely to disrupt the key elements underlying ecosystem structure and function to a point where there would be a serious or irreversible harm.” Presumably this increase is necessary to counteract the decrease in the score under 2.5.2.

Overall scores for the fishery are now:
Principle 1: 84
Principle 2: 91
Principle 3: 93

This would therefore maintain the determination that this fishery be certified.

The objection by ASOC noted that the company seeking certification was only one of the operators in fishing krill in the Antarctic and felt that for the MSC label to have any credibility it must reflect the impact of the fishery as a whole.

ASOC also criticized Moody Marine for not paying any attention to a report by Watters et al. (2009) which they suggest demonstrates that “recent risk assessments conducted for the krill fishery clearly show that measures currently in place are not sufficient to prevent irreversible harm to several krill predator populations” [WG-EMM-09/12, George M. Watters, Simeon Hill, Jefferson T. Hinke, and Phil Trathan. The Risks of not Deciding to Allocate the Precautionary Krill Catch Limit among SSMUs and Allowing Uncontrolled Expansion of the Krill Fishery up to the Trigger Level.]

Moody Marine argued that the study conducted by Watters et al. (2009) was produced after their final report was completed, but ASOC claimed that this was incorrect because these findings were highlighted in comments by Antarctic Krill Conservation Project (AKCP) on Moody Marine’s draft report. ASOC claimed that Moody Marine “simply chose not to respond to it, but they had ample opportunity to become familiar with this important document, which is being provided to the Independent Adjudicator and should be a part of the formal record.”

The Independent Adjudicator is lawyer Eldon Greenberg, one of three new lawyers recently appointed under salary to MSC to hear and judge objections. He is a partner in the Washington, D.C. office of the law firm of Garvey Schubert Barer. A graduate of Harvard College and Harvard Law School, Mr Greenberg was deputy general counsel of the Agency for International Development and general counsel of the National Oceanic and Atmospheric Administration during the Carter Administration. He specializes in environmental and natural resources issues, including fishery management, marine mammal and endangered species. He also teaches international negotiation as an adjunct professor at Georgetown University Law Center.

Under the MSC “Objections Procedure” a remand can only be ordered where the Independent Adjudicator determines that one or more of the following circumstances apply: (a) There was a serious procedural or other irregularity in the fishery assessment process that made a material difference to the fairness of the assessment; or (b) The score given by the certification body in relation to one or more performance indicators cannot be justified, and this was material to the outcome of the determination; or (c) It is necessary to remand the Determination in order to enable the certification body to consider additional information.

Although the “Objection Procedure”sounds very legal and official, it is difficult to see that it has any real legal standing. There is no contract in existence between MSC and the the resource owners, the civil public, to make any of this legal and binding – it is just a bunch of rules much like in a game of Monopoly.

The ASOC objection is based on three claims (i) Moody has misapplied the MSC principles in relation to the “unit of certification”, contending that the unit of certification must be the entire Antarctic krill fishery; (ii) Moody has incorrectly applied the MSCs procedures in reaching its conclusions; and (iii) The scores given by Moody in relation to a number of the Performance Indicators cannot be justified.
Eldon Greenberg found, in his judgment, that “Moody explicitly addressed the comments of both peer reviewers, including the one who was most critical of the analysis [Steve Nicol], and had made a rational judgment call about what changes should be incorporated in its report.” Greenberg concluded that this satisfies MSC requirements.

While dismissing other claims by ASOC, Greenberg did concede that Moody should have considered the Watters 2009 report because it was available “substantially in advance of completion of the certification body’s final report”. He stated that information brought to light in a timely fashion by commentators on a draft report cannot be ignored and to do so would “diminish the utility and value of the public comment process”.
Greenberg cites the precedent of the Pacific Hake Mid-Water Trawl Fishery decision where the Independent Adjudicator considered whether new material that arose after the draft report had been prepared would have made a “material difference to the fairness of the assessment”.

Without calling any expert scientific experts, Greenberg passes judgment on the contents of the Watters 2009 report and finds that the report “did not conclude that the fishery was not managed in a precautionary manner, but rather that the management system was not “as precautionary” as previously posited in the event of an “uncontrolled expansion” of the fishery.”

Greenberg finally decides on a “limited remand to the certification body to consider Watters 2009 in the context of the specific PIs where ASOC asserts that this study supports its objections to Moody’s scoring”.

Greenberg acknowledges that ASOC levels a “series of weighty arguments against a finding of sustainability” by Moody based on the role of krill in the Antarctic Ecosystem, lack of an adequate management strategy and the large amount of uncertainty and gaps in knowledge. He states that “I cannot (and will not) substitute my judgment for that of the certification body as long as its finding and determinations have a rational basis in the record and the rationale stated is consistent with the facts found here”.

After considering each issue raised by ASOC under each of the PIs through reams of text, Greenberg repeatedly finds that “I am not persuaded that Moody made a mistake of material fact, failed to consider material information, or acted arbitrarily or unreasonably in awarding the score” on each PI element contested by ASOC.

Finally Greenberg concludes that “Having considered the written submissions and supporting documentation of the parties, I find that, with one exception, ASOC’s grounds for objection…have not been established under the Objections Procedure. However, he did find “a serious procedural error” with regard to Moody not taking into account the Watters 2009 report in the scoring of a number of criteria under PIs 1 and 2. Moody now has the opportunity to reflect on the judgment and make changes, if any, in a response to Greenberg after which he will decide whether the objection is upheld or dismissed.

Note that there was no oral hearing in this case. Written submissions were instead considered and no scientific experts were called. This may reduce the considerable cost for leveling an objection imposed by MSC, to be borne by ASOC.