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Why Federal Dietary Guidelines Should
Acknowledge the Food-Choice /
Environment Nexus: Examining the
Recommendation to Eat More Seafood
Nell Green Nylen*
The Dietary Guidelines for Americans, and all federal programs and
activities that flow from them (for example, the Supplemental Nutrition
Assistance Program, the Special Supplemental Nutrition Program for Women,
Infants, and Children, and the National School Lunch Program), should
integrate environmental sustainability considerations into policy development
and on-the-ground implementation. While federal dietary advice is nonbinding
on the American public, it is a policy vehicle intended to have specific,
significant effects on the food choices of several hundred million people. These
effects translate into significant foreseeable environmental impacts that should
be taken into consideration under the National Environmental Policy Act in
deciding what advice to give and precisely how to frame it. Currently, this does
not happen, and the result is nutritional recommendations that are blindered to
their actual impacts. For example, the 2010 Guidelines recommend that
Americans more than double their average intake of seafood but fail to include
guidance about—or even to acknowledge—the relative environmental impacts
of different seafood choices. This is both irresponsible and, in the slightly
longer term, self-defeating: Overfishing and habitat destruction today
contribute to seafood scarcity and food insecurity tomorrow. We cannot afford
Copyright © 2013 Regents of the University of California.
* Research Fellow, Wheeler Institute for Water Law and Policy, Center for Law, Energy and the
Environment, University of California, Berkeley, School of Law (Boalt Hall); Law Clerk to Justice
Gregory J. Hobbs, Jr., Colorado Supreme Court, 2012–13. Nell received a J.D. with a Certificate of
Specialization in Environmental Law from Berkeley Law in May 2012 and holds a B.S. (1996) and
Ph.D. (2005) in Geological and Environmental Sciences from Stanford University. This Comment
originated as a paper for a course in food law and policy. The Comment won the 2012 Ellis J. Harmon
Prize in Environmental Law & Policy, awarded to a Berkeley Law student each year for the most
accomplished research paper on a topic in environmental law and policy. Nell thanks Professors Molly
S. Van Houweling and Stephen D. Sugarman, for their thought-provoking course; her ELQ editors,
including Katie Duncan, Louis Russell, Tabetha Peavey, Yvonne Chi, Lucy Allen, and Heather Welles,
for their editing help; Cox, Castle & Nicholson LLP, for generously sponsoring the Harmon Prize; and
her husband, David Zinniker, for his unfailing love and support. Any errors are her own.
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to continue to ignore the unintended environmental consequences of federal
dietary advice.
Introduction..................................................................................................... 760
I. The Food-Choice / Environment Nexus: Seafood ................................... 762
A. Environmental Impacts Related to Wild-Caught Seafood ........... 765
1. Overfishing ............................................................................ 765
2. Collateral Damage: Bycatch and Habitat Destruction ........... 767
B. Environmental Impacts Related to Farmed Seafood
(Aquaculture) ............................................................................... 770
C. Environmental Impacts Related to the Trophic Level of
Seafood Choices .......................................................................... 772
D. Health Effects Associated with Seafood Contamination by
Toxic Pollutants ........................................................................... 773
II. Federal Fisheries Management ............................................................... 776
A. Fishing in Federal Waters ............................................................ 776
B. Federal Oversight of State Fisheries Management ...................... 780
C. Federal Aquaculture Law and Policy ........................................... 781
D. The International Arena: International Law and Trade ................ 781
III. Using the Bully Pulpit: The Crucial Role of “Recommendations” ....... 784
A. The 2010 Dietary Guidelines for Americans ............................... 784
B. The Guidelines Ignored DGAC References to Environmental
Sustainability ............................................................................... 787
C. The Guidelines Failed to Consider Environmental Impacts ........ 788
Conclusion ...................................................................................................... 792
INTRODUCTION
[T]here is still too little acknowledgment in the greater nutrition community
that anything except health—and “free choice”—need to be of concern as
we recommend diets. One searches in vain through the newest Dietary
Guidelines for Americans for the slightest indication that anything might be
amiss in the food system. But things are amiss . . . .1
Nutrition expert Joan Dye Gussow made this pointed observation about
the previous iteration of the U.S. federal dietary guidelines, but her statement
continues to resonate today. American consumers are becoming increasingly
aware of the broader human and environmental health implications of their
food purchasing decisions, and many want to make healthier, more sustainable
1. Joan Dye Gussow, Reflections on Nutritional Health and the Environment: The Journey to
Sustainability, 1 J. HUNGER & ENVTL. NUTRITION 3, 20 (2006) (citation omitted); see also Joan Dye
Gussow, Dietary Guidelines for Sustainability: Twelve Years Later, 31 J. NUTRITION EDUC. 195 (1999);
Joan Dye Gussow & Kate Clancy, Dietary Guidelines for Sustainability, 18 J. NUTRITION EDUC. 1
(1986).
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choices. Unfortunately, their efforts are often stymied by the difficulty of
finding concise, accurate information that directly addresses the costs and
benefits of different options. The sheer quantity and variable quality of
available information overwhelms most consumers, who are unable to expend
the time and energy necessary to adequately research the choices available to
them.
On the other hand, with its phalanx of expert agencies researching and
contributing to the management of all aspects of our food system,2 the federal
government is much better situated to recognize and assess the cumulative
health and environmental impacts of food choices. Through its multiple roles of
providing the public with general health and nutrition advice, promoting
American food products,3 and overseeing food subsidy programs that affect
millions,4 it is also uniquely positioned to relay sustainability information to
American consumers to help them make more responsible decisions in their
daily lives.
However, federal guidance about nutrition and the sustainability of
different food choices has so far been kept largely separated. For example, the
U.S. Department of Agriculture’s (USDA’s) Alternative Farming Systems
Information Center serves as a clearinghouse for information on organic food
production while its National Organic Program labels organic foods and its
Know Your Farmer, Know Your Food initiative aims to support local farmers
and sustainable agricultural practices.5 Similarly, the National Oceanic and
Atmospheric Administration’s National Marine Fisheries Service (NMFS)
hosts FishWatch, a website that “provides easy-to-understand science-based
facts to help consumers make smart sustainable seafood choices.”6 Yet, the
Dietary Guidelines for Americans, the official focal point of all federal
nutritional advice, fails to incorporate (or even take into account) any of this
information in its recommendations.
2. These agencies include the U.S. Departments of Agriculture and Health and Human Services,
the Food and Drug Administration, the National Oceanic and Atmospheric Administration, and the
Environmental Protection Agency.
3. See, e.g., Research and Promotion Programs, U.S. DEP’T AGRIC., http://www.ams.usda.gov/
(follow “Research and Promotion Programs” hyperlink) (last visited Sept. 22, 2013).
4. See About FNS, U.S. DEP’T AGRIC., http://www.fns.usda.gov/about-fns (last visited Sept. 22,
2013) (“[O]ur mission is to increase food security and reduce hunger by providing children and lowincome people access to food, a healthful diet and nutrition education . . . .”). Food and Nutrition Service
“programs serve one in four Americans during the course of a year.” Id.
5. See Organic Production, U.S. DEP’T AGRIC., http://www.nal.usda.gov/afsic/pubs/
ofp/ofp.shtml (last visited Oct. 20, 2013); National Organic Program, U.S. DEP’T AGRIC.,
http://www.ams.usda.gov/AMSv1.0/nop (last visited Oct. 20, 2013); Know Your Farmer, Know Your
Food: Our Mission, U.S. DEP’T AGRIC., http://www.usda.gov/wps/portal/usda/knowyourfarmer?
navtype=KYF&navid=KYF_RESOURCES (last visited Oct. 20, 2013); KYF Compass: Stewardship
and Local Foods, U.S. DEP’T AGRIC., http://www.usda.gov/wps/portal/usda/usdahome?
contentidonly=true&contentid=KYF_Compass_Stewardship_and_Local_Food.html (last visited Oct. 20,
2013).
6. What Is FishWatch?, NAT’L OCEANIC & ATMOSPHERIC ADMIN., http://www.fishwatch.gov/
about/index.htm (last visited Sept. 22, 2013).
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Instead, USDA and the U.S. Department of Health and Human Services
(HHS) consistently ignore the foreseeable environmental impacts of the
Dietary Guidelines they jointly publish every five years.7 For example, the
most recent guidelines, released in January of 2011, call for American adults to
more than double their intake of seafood,8 yet the report fails to convey any
indication of the effect this change would likely have on already overtaxed U.S.
and global fisheries.9 One detractor of the new guidelines retorted: “Current
fishing levels are unsustainable. Imagine the impact of all 300,000,000+ of
Americans increasing fish intake . . . .”10 Even with sustainability advice in
place, this increase in seafood consumption could be an environmentally
damaging proposition.11 Without it, recommending that Americans eat more
seafood is exceedingly irresponsible.
I.
THE FOOD-CHOICE / ENVIRONMENT NEXUS: SEAFOOD
Simply encouraging Americans to eat more seafood will have far-reaching
unintended consequences. Currently, visitors to USDA’s ChooseMyPlate
nutrition advice website will find twenty-seven different types of fish and
shellfish listed as examples in the “protein foods” group.12 There is no mention
that eating some types of seafood comes with added baggage in the form of
excessive fishing pressures and other negative environmental impacts. Yet, as
Table 1 demonstrates, the Monterey Bay Aquarium’s Seafood Watch website
lists only two of the ChooseMyPlate options—mussels and oysters—as
unqualifiedly sustainable (receiving Seafood Watch’s “Best Choice” rating);
the remainder give cause for differing levels of concern, often based on
whether they are farmed or wild-caught, the particular fishing method used, and
where they are harvested.13 In fact, approximately 63 percent of the options
7. See U.S. DEP’T OF AGRIC. & U.S. DEP’T OF HEALTH & HUMAN SERVS., DIETARY
GUIDELINES FOR AMERICANS 2010 (7th ed. 2010) [hereinafter DIETARY GUIDELINES], available at
http://www.cnpp.usda.gov/DGAs2010-PolicyDocument.htm.
8. See DIETARY GUIDELINES, supra note 7, at 46 fig.5-1, 51 tbl.5-1 (increasing suggested intake
from 0.5 to 1.2 ounces per day).
9. See, e.g., Alison Ashton, The (Fairly) Simple Message in the 2010 Dietary Guidelines,
NOURISH NETWORK (Feb. 7, 2011), http://nourishnetwork.com/2011/02/07/the-fairly-simple-messagein-the-2010-dietary-guidelines/ (“It would have been helpful to include the advice to choose sustainable
seafood.”).
10. Donna P. Feldman, The New Dietary Guidelines: 1 Pick, 3 Pans & Something New, RADIO
NUTRITION (Feb. 1, 2011), http://radionutrition.com/2011/02/01/the-new-dietary-guidelines-1-pick-4pans/.
11. See, e.g., Aniol Esteban, We Need to Eat Less Fish—Not More Sustainable Fish, THE
GUARDIAN (Jan. 28, 2011), http://www.theguardian.com/environment/2011/jan/28/sustainable-fish.
12. ChooseMyPlate lists anchovies, catfish, clams, cod, crab, crayfish, flounder, haddock, halibut,
herring, lobster, mackerel, mussels, octopus, oysters, pollock, porgy, salmon, sardines, scallops, sea
bass, shrimp, snapper, squid, swordfish, trout, and tuna. See Protein Foods, U.S. DEP’T AGRIC.,
http://www.ChooseMyPlate.gov/food-groups/protein-foods.html (last visited Aug. 4, 2013).
13. See Seafood Search, MONTEREY BAY AQUARIUM, http://www.montereybayaquarium.org/cr/
SeafoodWatch/web/sfw_factsheet.aspx (last visited Aug. 4, 2013) (providing pertinent data when a
visitor queries the database by entering each seafood type into the “Seafood Search” box).
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rated very poorly (receiving an “Avoid” rating) under some combination of
harvest type, fishing method, and harvest location.14
TABLE 1. SUSTAINABILITY RATINGS AND CONTAMINATION RISKS FOR THE
TWENTY-SEVEN TYPES OF SEAFOOD THE CHOOSEMYPLATE FEDERAL NUTRITION
ADVICE WEBSITE LISTS AS “[C]OMMONLY EATEN PROTEIN FOODS.”
Mercury Risk (Safe Servings / Month) 17
Type of
Seafood15
Sustainability
Rating16
anchovies
not available
4+
4+
4+
4+
catfish
GA–Best Choice
4+
4+
4+
4+
clams
GA–Best Choice
4+
4+
4+
4+
cod
Avoid–Best Choice
4+
4+
4+
4–4+
crab
Avoid–Best Choice
4–4+
4–4+
4–4+
4–4+
crayfish
Avoid–Best Choice
4–4+
4–4+
4–4+
4–4+
Women
Men
Kids (6–12) Kids (0–5)
flounder
Avoid–GA
4+
4+
4+
4+
haddock
GA–Best Choice
4+
4+
3
2
halibut
Avoid–Best Choice
3–4+
3–4+
2–3
1–2
herring
GA
4+
4+
4+
4+
lobster
Avoid–Best Choice
4+
4+
4+
3
mackerel
GA–Best Choice
<1–4+
0–4+
0–4+
0–4+
PCB
Risk18
+
+
Continued on next page
14.
15.
16.
See infra Table 1; Seafood Search, supra note 13.
See Protein Foods, supra note 12.
See Seafood Search, supra note 13. Seafood in the “Best Choice” category “is abundant, wellmanaged and caught or farmed in environmentally friendly ways”; “concerns with how [seafood is]
caught or farmed—or with the health of [its] habitat due to other human impacts” place it in the “GA”
(Good Alternatives) category; seafood in the “Avoid” category is “caught or farmed in ways that harm
other marine life or the environment.” Seafood Recommendations, Monterey Bay Aquarium,
http://www.montereybayaquarium.org/cr/cr_seafoodwatch/sfw_recommendations.aspx (last visited
Aug. 17, 2013).
17. See EDF Seafood Selector, ENVTL. DEF. FUND, http://seafood.edf.org/ (last visited Aug. 4,
2013) (providing pertinent data when a visitor clicks on each seafood type or queries the database by
entering each seafood type in the “Search” box). The Environmental Defense Fund’s calculations of the
safe number of servings per month for each category of consumers assume no other contaminated fish is
eaten and the following body weights (in pounds), portion sizes (in ounces), and health-concern mercury
cut-offs (in parts per million): Women—144, 6, 0.269; Men—172, 8, 0.241; Kids (6–12)—67, 4.5,
0.167; Kids (0–5)—32, 3, 0.119. See How We Determine Our Health Ratings, ENVTL. DEF. FUND,
http://seafood.edf.org/how-we-determine-our-health-ratings (last visited Aug. 4, 2013). Note that
general consumption advisories may over- or underestimate a consumer’s actual risk exposure because
actual contaminant concentrations vary widely for the same type of seafood. See, e.g., Roxanne Karimi
et al., A Quantitative Synthesis of Mercury in Commercial Seafood and Implications for Exposure in the
United States, 120 ENVTL. HEALTH PERSPS. 1512, 1515 (2012) (finding “high variability in Hg content
for both broadly defined seafood categories composed of multiple species (e.g., shark, tuna, shrimp), as
well as for individual species (e.g., blue crab, Callinectes sapidus)”).
18. See ENVTL. DEF. FUND, CONTAMINATED FISH: HOW MANY MEALS ARE SAFE PER MONTH
(2009), available at http://www.edf.org/sites/default/files/7534_Health_Alerts_seafood.pdf.
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TABLE 1. CONTINUED
Mercury Risk (Safe Servings / Month)
Type of
Seafood
Sustainability
Rating
mussels
Best Choice
4+
4+
4+
4+
octopus
Avoid–GA
4+
4+
4+
3
oysters
Best Choice
4+
4+
4+
4+
pollock
Avoid–Best Choice
4+
4+
4+
4+
porgy
GA
4+
4+
4+
4+
salmon
Avoid–Best Choice
4+
4+
4+
4+
sardines
Avoid–Best Choice
4+
4+
4+
4+
Women
Men
Kids (6–12) Kids (0–5)
scallops
GA–Best Choice
4+
4+
4+
4+
sea bass
Avoid–Best Choice
4
4
4
4
shrimp
Avoid–Best Choice
4+
4+
4+
4+
snapper
Avoid–Best Choice
3–4+
3–4+
2–4
1–3
squid
Avoid–Best Choice
4+
4+
4+
4+
swordfish Avoid–Best Choice
PCB
Risk
+
+
1
0
0
0
trout
Avoid–Best Choice
4+
4+
4+
4–4+
+
tuna
Avoid–Best Choice
1–4+
1–4+
<1–4+
<1–4
+
When most people think about seafood consumption’s environmental
impacts, they probably think first about overfishing; however, there are a host
of important issues to address. Modern fishing techniques may do much more
than capture the targeted species; they commonly result in physical damage to
bottom environments and the incidental capture or destruction of large
quantities of unwanted sea life (including fish, invertebrates, sea turtles, marine
mammals, and sea birds). Coastal and inland ecosystems are sometimes
destroyed to make room for aquaculture, fish farming can result in pollution,
and some aquaculture practices have significant impacts on the viability of wild
fish populations. Additionally, because the types of fish Americans prefer
(including tuna and salmon) are high on the food chain, pound for pound, they
represent a much larger energy “SeafoodPrint” than low-trophic level species,
or even intermediate predators, leading us to exploit more and more of the
oceans in order to satisfy our desire for these types of fish.19
These environmental impacts will have indirect, but definite, long-term
effects on American health and nutrition, including by jeopardizing the future
19. The SeafoodPrint of a particular fishery “is the oceanic primary production required to
generate (or ‘sustain’) the catch of [the] fisher[y], similar to the grass that would be required per year to
generate a certain production of milk or meat.” SeafoodPrint: A National Geographic & Sea Around Us
Collaboration, SEA AROUND US PROJECT, http://www.seaaroundus.org/national_geographic/ (last
visited July 28, 2013); see also D. Pauly & V. Christensen, Primary Production Required to Sustain
Global Fisheries, 374 NATURE 255 (1995). Seafood’s carbon footprint is another important issue, but I
do not address it here.
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availability of seafood.20 Moreover, environmental degradation and pollution
directly affect the health of those who consume seafood contaminated by toxic
pollutants.
A.
1.
Environmental Impacts Related to Wild-Caught Seafood
Overfishing
Overfishing—removing fish from an ecosystem at a rate that does not
allow them to reproduce sustainably21—is “a problem for fish, their
ecosystems, and people that depend on them.”22 Fishing can have immediate
severe impacts on fish populations, but damage from overfishing often plays
out more slowly when harvest outpaces replacement reproduction or
cumulative impacts restructure ecosystems and food webs, placing fish in novel
and sometimes hostile conditions.23 Together, the development of new
technologies and an expanding global population have given fishermen both the
means and the incentive to capture as many fish as possible, and—in the
absence of properly enforced, well-thought-out regulations—they have
generally done so.24 For most of history, people assumed that the oceans had
unlimited capacity to supply our needs.25 However, toward the end of the
twentieth century, we began to realize this was a misconception.26
The rapid industrialization of ocean fisheries during the last half-century
has brought significant change; today, resource exploitation occurs on a
massive scale.27 Some researchers estimate that the oceans have lost 90 percent
of “large predatory fish biomass,” and most declines appear to have occurred
within a decade or two of fishery industrialization.28 This loss of large
20.
21.
See discussion infra Part III.C.
See, e.g., What Is Overfishing, OVERFISHING—A GLOBAL DISASTER, http://overfishing.org/
pages/what_is_overfishing.php (last visited Sept. 22, 2013); Zachary Tyler, Saving Fisheries on the
High Seas: The Use of Trade Sanctions to Force Compliance with Multilateral Fisheries Agreements,
20 TUL. ENVTL. L.J. 43, 48 (2006).
22. Becky Mansfield, “Modern” Industrial Fisheries and the Crisis of Overfishing, in GLOBAL
POLITICAL ECOLOGY 84, 84 (Dick Peet et al. eds., 2011).
23. See id. at 85 (For example, “when predatory fish are removed, smaller herbivorous fish may
increase in abundance, restructuring the entire food web and making recovery of the predatory species
less likely.”); Colin W. Clark, Possible Effects of Schooling on the Dynamics of Exploited Fish
Populations, 36 JOURNAL DU CONSEIL INTERNATIONAL POUR L’EXPLORATION DE LA MER [J. CONS.
INT. EXPLOR. MER] 7, 7 (1974) (“[S]udden population collapses may be expected in the exploitation of
small, schooling species of fish normally subject to heavy predation.”).
24. See, e.g., Ransom A. Myers & Boris Worm, Rapid Worldwide Depletion of Predatory Fish
Communities, 423 NATURE 280 (2003); CAROLYN SCEARCE, PROQUEST DISCOVERY GUIDES,
EUROPEAN FISHERIES HISTORY: PRE-INDUSTRIAL ORIGINS OF OVERFISHING (2009), available at
http://www.csa.com/discoveryguides/fish/review.pdf.
25. See Mansfield, supra note 22, at 84.
26. See id.
27. See id.
28. See Myers & Worm, supra note 24, at 280, 282. But see Boris Worm et al., Rebuilding Global
Fisheries, 325 SCI. 578, 578 (2009) (noting declining exploitation rates for many ecosystems but noting
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predators has had significant repercussions for individual fish stocks as well as
the structure and function of entire marine ecosystems, which have experienced
changed species compositions, reductions in biological diversity, and decreased
resilience.29 Some suggest that we may be “moving from a system much like
the wild Serengeti to a system where . . . all we have left are the plant
eaters . . . .”30
The Food and Agriculture Organization of the United Nations (FAO)
reports that worldwide marine capture fisheries production reached a maximum
of 86.4 million metric tons in 1996 and has remained fairly stable at close to 80
million metric tons since then.31 On the other hand, the downward trends for
catches of particular species or groups of species have been striking.32 For
example, Chilean jack mackerel catches declined from a peak of “about 5
million tonnes in the mid-1990s” to less than 1 million tonnes in 2010.33 As of
2008, shark catch had dropped nearly 20 percent after peaking in 2003, and
catch of gadiformes (which include cod, hake, and haddock) had approximately
halved since its peak in 1987.34 The FAO reported significant downward catch
trends for freshwater mollusks (like clams and mussels) since 2002, possibly
“due to their extreme vulnerability to habitat degradation, overexploitation, and
predation by alien species.”35 Concerns about Atlantic bluefin tuna stocks and
their mismanagement led to a 2010 proposal “to ban the international trade in
Atlantic bluefin tuna under the Convention on International Trade in
Endangered Species of Wild Fauna and Flora (CITES) and, although the
proposal was ultimately rejected, the concern remains.”36
In the mid-1970s, roughly 40 percent of marine fish stocks were estimated
to be moderately exploited or underexploited, 50 percent were thought to be
fully exploited, and 10 percent were considered “overexploited, depleted, or
recovering stocks.”37 In 2009, only about 13 percent of fish stocks remained
that “63% of assessed fish stocks worldwide still require rebuilding, and even lower exploitation rates
are needed to reverse the collapse of vulnerable species”).
29. See Myers & Worm, supra note 24, at 282–83; Mansfield, supra note 22, at 85.
30. Too Few Fish in the Sea? Scientists Report Decline in Large Fish, MONSTERS & CRITICS
(Feb. 18, 2011, 5:39 PM), http://www.seaaroundus.org/OtherWebsites/2011/MonstersAndCriticsCom_
TooFewFishInTheSeaScientistReportDeclineInLargeFish.pdf (quoting a scientist at a meeting of the
American Association for the Advancement of Science).
31. See FISHERIES & AQUACULTURE DEP’T, FOOD & AGRIC. ORG. OF THE UNITED NATIONS, THE
STATE OF WORLD FISHERIES AND AQUACULTURE 2012, at 3 tbl.1, 5 fig.3, 11 (2012) [hereinafter STATE
OF WORLD FISHERIES 2012], available at http://www.fao.org/docrep/016/i2727e/i2727e00.htm
(explaining that “[t]he world’s marine fisheries increased markedly from 16.8 million tonnes in 1950 to
a peak of 86.4 million tonnes in 1996, and then declined before stabilizing at about 80 million tonnes”).
32. FISHERIES & AQUACULTURE DEP’T, FOOD & AGRIC. ORG. OF THE UNITED NATIONS, THE
STATE OF WORLD FISHERIES AND AQUACULTURE 2010, at 15 (2010) [hereinafter STATE OF WORLD
FISHERIES 2010], available at http://www.fao.org/docrep/013/i1820e/i1820e00.htm.
33. See STATE OF WORLD FISHERIES 2012, supra note 31, at 8.
34. See STATE OF WORLD FISHERIES 2010, supra note 32, at 15–16.
35. Id. at 17–18.
36. See STATE OF WORLD FISHERIES 2012, supra note 31, at 12.
37. See STATE OF WORLD FISHERIES 2010, supra note 32, at 8.
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“non-fully exploited,” 57 percent were fully exploited, and approximately 30
percent were overexploited.38 Stocks of the ten species accounting “for about
30 percent of world marine capture fisheries production” are either fully or
overexploited.39
Poor scientific understanding, lack of effective monitoring, weak
regulations, and enforcement problems all contribute to overfishing.40 Illegal,
unreported, and unregulated (IUU) fishing—irresponsible practices that
undermine attempts to manage fisheries, including ignoring rules for
permissible fishing gear, failing to report or misreporting catch composition
and numbers, and fishing in off-limits areas—is a significant problem that
works against a well-reasoned regulatory structure.41 Worldwide, the annual
IUU catch has been estimated to be worth more than $4 billion, and it involves
mostly fishing companies based in developed countries—including Britain,
France, Italy, Japan, South Korea, Spain, and Taiwan—raiding the waters of
developing nations.42 The status quo is unsustainable.43
2.
Collateral Damage: Bycatch and Habitat Destruction
Fishing generally takes place far from public view in an underwater
environment of which most people are barely cognizant. The mental disconnect
created by this separation allows the widespread, continuing use of fishing
practices with significant negative, but rarely directly observed, side effects. As
a thought exercise,
[i]magine what people would say if a band of hunters strung a mile of net
between two immense all-terrain vehicles and dragged it at speed across the
38. STATE OF WORLD FISHERIES 2012, supra note 31, at 11. Non-fully exploited stocks “are
under relatively low fishing pressure and have some potential to increase their production although they
often do not have a high production potential and require proper management plans to ensure that any
increase in the exploitation rate does not result in [] overfishing.” Id. at 11–12. “[F]ully exploited
stocks . . . produce catches that are very close to their maximum sustainable production and have no
room for further expansion and require effective management to avoid decline . . . .” Id. at 11.
Meanwhile, overexploited stocks “produc[e] lower yields than their biological and ecological potential
and [are] in need of strict management plans to restore their full and sustainable productivity . . . .” Id.
39. Id. at 12.
40. See id.; see also Unsustainable Fishing, WORLD WILDLIFE FUND, http://wwf.panda.org/
about_our_earth/blue_planet/problems/problems_fishing/ (last visited Sept. 22, 2013) (citing
technological advances, subsidies, unfair fishing agreements, pirates, bycatch, destructive fishing
practices, and poor management).
41. See Leticia M. Diaz & Barry Hart Dubner, Foreign Fishing Piracy vs. Somalia Piracy—Does
Wrong Equal Wrong?, 14 BARRY L. REV. 73, 79–80 (2010).
42. See id. at 80–81.
43. See, e.g., NOAA to Work with 10 Nations to Address Illegal, Unreported, and Unregulated
Fishing and Stem the Bycatch of Protected Species, NAT’L OCEANIC & ATMOSPHERIC ADMIN. (Jan. 11,
2013), http://www.noaanews.noaa.gov/stories2013/20130111_protectedspecies.html (“IUU fishing
undermines international efforts to sustainably manage and rebuild fisheries and creates unfair market
competition for fishermen who adhere to strict conservation measures, like those in the United States.
IUU fishing can devastate fish populations and their productive marine habitats, threatening food
security and economic stability.”).
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plains of Africa. . . . [It] would scoop up everything in its way: predators
such as lions and cheetahs, lumbering endangered herbivores such as rhinos
and elephants, herds of impala and wildebeest, family groups of warthogs
and wild dogs. . . . Picture how the net is constructed, with a huge metal
roller attached to the leading edge . . . [that] smashes and flattens
obstructions[,] . . . break[ing] off every outcrop and uproot[ing] every tree,
bush, and flowering plant . . . . There are no markets for about a third of the
animals they have caught because they don’t taste good, or because they
are simply too small or too squashed. This pile of corpses is dumped on the
plain to be consumed by scavengers.44
Like a good documentary film, this description of a theoretical land-based
equivalent to the fishing method known as trawling simultaneously disturbs and
enlightens. It is doubtful that such an “efficient but highly unselective way of
killing animals” could be kept up for long on land and in full view of the
public.45 While perhaps an “efficient” means of gathering and killing sea life,
bottom trawling is also a breathtakingly wasteful and unsustainable method of
procuring protein to feed the world.
Every year, fishermen incidentally catch and discard on the order of 16
billion pounds of fish, invertebrates, turtles, birds, sharks, and marine mammals
while targeting other species.46 This figure represents almost twice the weight
of the United States’ total reported commercial catch in 2008 (8.3 billion
pounds).47 As the FAO explains, many fisheries around the world have a
serious problem with “high levels of unwanted and often unreported bycatch
and discards . . . including the capture of ecologically important species and
juveniles of economically valuable species.”48 Therefore, bycatch compounds
the effects of overfishing.
Fishing gear is a primary predictor of bycatch.49 Fishing methods with
very low bycatch and that are unlikely to cause much habitat damage include
44. CHARLES CLOVER, THE END OF THE LINE: HOW OVERFISHING IS CHANGING THE WORLD AND
WHAT WE EAT 1–2 (2006).
45. Id. at 2.
46. See KIERAN KELLEHER, DISCARDS IN THE WORLD’S MARINE FISHERIES: AN UPDATE xvi, 3
(FAO Fisheries Technical Paper No. 470, 2005), available at http://www.fao.org/docrep/008/
y5936e/y5936e00.htm (estimating global yearly average discarded catch of 7.3 million metric tons;
“discarded catch is that portion of the total organic material of animal origin in the catch, which is
thrown away, or dumped at sea . . . dead, or alive”). A NMFS report estimated that, in 2005, U.S.
fisheries resulted in the bycatch of 1.2 billion pounds of fish (about 17 percent of total fish landings),
1887 marine mammals, 11,772 sea turtles, and at least 7769 seabirds. See NAT’L MARINE FISHERIES
SERV., U.S. NATIONAL BYCATCH REPORT 8 tbl.1 (William A. Karp et al. eds., 2011), available at
http://www.nmfs.noaa.gov/by_catch/bycatch_nationalreport.htm. Although bycatch technically includes
both the “discarded catch of any living marine resource and . . . unobserved mortality due to a direct
encounter with fishing gear,” data for the latter category “is rarely available.” Id. at 3.
47. See NAT’L MARINE FISHERIES SERV., STATISTICAL HIGHLIGHTS, FISHERIES OF THE UNITED
STATES 2009 (2009), available at http://www.st.nmfs.noaa.gov/st1/fus/fus09/highlight2009.pdf.
48. See STATE OF WORLD FISHERIES 2010, supra note 32, at 11–12.
49. See NAT’L MARINE FISHERIES SERV., MANAGING THE NATION’S BYCATCH: PRIORITIES,
PROGRAMS AND ACTIONS FOR THE NATIONAL MARINE FISHERIES SERVICE vi (1998), available at
http://www.nmfs.noaa.gov/by_catch/docs/bycatchplanonline.pdf.
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pole/troll fishing (using a baited hook and a fishing pole to target individual
fish), trolling (towing multiple baited lines from a boat), and harpooning.50
Traps and pots usually result in fairly low bycatch and are less destructive to
the sea floor than methods that involve dragging gear along the bottom.51 Purse
seining involves surrounding entire schools of fish with a wall of netting that is
then pulled tight at the bottom; if misused, this method can lead to bycatch.52
Gillnetting involves “curtains of netting . . . suspended by a system of floats
and weights” that is extremely difficult for fish to see and avoid, and can
produce significant bycatch.53 Longlining uses “a central fishing line that can
range from one to 50 miles long . . . strung with smaller lines of baited hooks,
dangling at evenly spaced intervals,” either near the surface (for swordfish and
tuna) or along the ocean floor.54 Seabirds, sea turtles, and other non-targeted
animals are commonly caught by accident.55 Trawling involves towing nets at
different water depths, with bottom trawling producing the most bycatch.56
Dredging by “dragging a heavy frame with an attached mesh bag along the sea
floor to catch animals living on or in the mud or sand” (used for shellfish
including clams, scallops, and oysters) can produce a large amount of bycatch
and severely damage bottom habitat.57 In some parts of the world, dynamite is
a common fishing gear used in coral reef environments; it leads to significant
bycatch and habitat destruction.58 U.S. fisheries are dominated by trawling (54
percent), with pole/troll making up less than 1 percent.59
Although small-scale fisheries vary significantly, they are generally more
sustainable than large-scale industrialized fisheries because they
use less energy-intensive fishing gear and cannot operate far offshore[,] . . .
discard little to no fish and (with the exception of a few gears, including
dynamite) do not destroy benthic communities [on which exploited species
50. See Fishing Methods, MONTEREY BAY AQUARIUM, http://www.montereybayaquarium.org/cr/
cr_seafoodwatch/sfw_gear.aspx (last visited Aug. 16, 2013).
51. See id.; see also Geoffrey G. Shester & Fiorenza Micheli, Conservation Challenges for SmallScale Fisheries: Bycatch and Habitat Impacts of Traps and Gillnets, 144 BIOLOGICAL CONSERVATION
1673, 1677 (2011).
52. See Fishing Methods, supra note 50.
53. Id.; see also Shester & Micheli, supra note 51, at 1677; Luis Gustavo Cardoso et al., Gillnet
Fisheries as a Major Mortality Factor of Magellanic Penguins in Wintering Areas, 62 MARINE
POLLUTION BULL. 840, 842 (2011).
54. Fishing Methods, supra note 50.
55. See id.; see also John N. Kittinger, The Legal Nexus in U.S. Fisheries Management:
Application in the Hawaiian Longline Fishery Litigation, 30 U. HAW. L. REV. 269, 270, 273–74 (2007)
(discussing significant longline turtle bycatch); Cardoso et al., supra note 53, at 842 (stating that
longlining is known to kill albatrosses and petrels).
56. See Fishing Methods, supra note 50; see also generally S.J. Foster & A.C.J. Vincent,
Tropical Shrimp Trawl Fisheries: Fishers’ Knowledge of and Attitudes About a Doomed Fishery, 34
MARINE POL’Y 437 (2010).
57. ALIZA GREEN, THE FISHMONGER’S APPRENTICE 17 (2011); see also Fishing Methods, supra
note 50.
58. See Tanzania: More Effort Needed to End Dynamite Fishing, ALL AFR. (Apr. 11, 2011),
http://allafrica.com/stories/201104120031.html.
59. See Fishing Methods, supra note 50.
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depend][,] . . . are capable of targeting different fish species on the basis of
their availability[,] . . . [and] employ 25 times more people and use onequarter the fuel to catch roughly the same amount of edible fish (roughly 30
million [metric] t[ons]).60
Yet, large-scale industrialized fisheries, which tend to use more destructive
fishing techniques, receive larger fishing subsidies.61 Furthermore, seafood
certification organizations experience “real technical difficulties in defining
sustainability criteria for fisheries that are data poor,” as small-scale fisheries
generally are, leaving consumers in the dark about the actual sustainability of
their seafood options.62 As a consequence, small-scale fisheries are largely
unable to capitalize on the fact that they are often more sustainable than largescale fisheries.
B.
Environmental Impacts Related to Farmed Seafood (Aquaculture)
Aquaculture, seen as a way to overcome the increasingly obvious
limitations of marine fisheries, has been gaining in popularity, experiencing a
fifty-fold increase over the last six decades.63 As of 2008, aquaculture
accounted for more than one-third of all seafood produced worldwide,
including 45.7 percent of the seafood produced for human consumption.64 The
practice involves raising fish and shellfish—including those later released into
the wild—in “ponds, tanks, cages, or raceways.”65 Aquaculture can entail
freshwater (e.g., trout, tilapia, and catfish) or marine (e.g., salmon, shrimp,
oysters, mussels, and clams) species.66 So far, the United States has been a
minor producer but a major consumer of global aquaculture production:
Domestic aquaculture production contributes about 5 percent of the seafood we
consume every year, while imported aquaculture products account for more
than 40 percent.67
60. Jennifer Jacquet & Daniel Pauly, Funding Priorities: Big Barriers to Small-Scale Fisheries,
22 CONSERVATION BIOLOGY 832, 832–33, 833 fig.1 (2008) (noting that industrial fisheries discard large
quantities of bycatch and “reduce[] 20–30 million[] [metric tons] of fish annually into fishmeal to feed
pigs, chickens, and farmed fish”); see also Mansfield, supra note 22, at 91.
61. See Jacquet & Pauly, supra note 60, at 833–34, 834 tbl.1 (arguing that most fishing subsidies
are skewed toward large-scale fisheries and that “[t]he elimination of fuel subsidies alone would render
the 200-strong fleet of high-seas bottom trawlers unprofitable, sparing the reef habitat and bycatch these
industrial boats generate in their pursuit of overfished deep sea species”).
62. See Jacquet & Pauly, supra note 60, at 833.
63. See Fishing for Sustainable Practices to Conserve Fisheries, WORLDWATCH INST. (May 3,
2011), http://www.worldwatch.org/fishing-sustainable-practices-conserve-fisheries-1.
64. See STATE OF WORLD FISHERIES 2010, supra note 32, at 18.
65. What Is Aquaculture?, NAT’L OCEANIC & ATMOSPHERIC ADMIN., http://www.nmfs.noaa.gov/
aquaculture/what_is_aquaculture.html (last visited Sept. 22, 2013); see also Fishing Methods, supra
note 50 (illustrating different aquaculture methods).
66. See What Is Aquaculture?, supra note 65.
67. See Farmed Seafood: In the U.S., NAT’L OCEANIC & ATMOSPHERIC ADMIN.,
http://www.fishwatch.gov/farmed_seafood/in_the_us.htm (last updated Aug. 29, 2013); Farmed
Seafood: Outside the U.S., NAT’L OCEANIC & ATMOSPHERIC ADMIN., http://www.fishwatch.gov/
farmed_seafood/outside_the_us.htm (last updated Sept. 6, 2013).
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However, aquaculture can have significant environmental impacts when
poorly conceived or managed.68 Unlike farming relatively low-maintenance
herbivorous fish, farming salmon and shrimp is very resource intensive,
requiring the input of a weight of fish meal (derived from wild-caught fish like
herring and anchovies) many times the weight of edible seafood finally
harvested.69 Open net pens and cages pose significant risks of pollution,
transferring parasites or disease to wild fish, and escaped fish interbreeding or
competing with wild ones.70 On the other hand, coastal or inland pond
aquaculture often causes habit destruction and creates significant amounts of
wastewater.71 For example, shrimp farms have replaced almost 4 million acres
of biologically diverse coastal mangrove ecosystems that buffer low-lying areas
from coastal erosion, tsunamis, and saltwater intrusion.72 Moreover, leftover
feed pellets, fecal material, pesticides, antibiotics, and other aquaculture-related
chemicals commonly result in local and regional pollution, algal blooms, and
anoxic water conditions that cause dead zones.73 While recirculating systems of
raised tanks that treat and recycle water mitigate aquaculture’s pollution
impacts, they are expensive and energy intensive.74
Additionally, seafood produced via aquaculture can pose greater health
hazards than wild-caught alternatives. Farmed fish, raised on feed made from
fish meal and oil, contain higher levels of polychlorinated biphenyls (PCBs),
dioxins, and other toxic chemicals that build up in fatty tissues than wild fish,
which eat a more varied diet.75
68.
69.
See, e.g., Fishing for Sustainable Practices to Conserve Fisheries, supra note 63.
See id.; Simon Santow, Sustainability Questions Over Fish Farming, ABC NEWS AM (May
9, 2011, 8:35 AM), http://www.abc.net.au/am/content/2011/s3211297.htm; Fishing for Sustainable
Practices to Conserve Fisheries, supra note 63.
70. See Fishing Methods, supra note 50.
71. See id.
72. See id.; Mark Kinver, Tsunami: Mangroves ‘Saved Lives,’ BBC NEWS (Dec. 25, 2005, 7:56
AM), http://news.bbc.co.uk/2/hi/science/nature/4547032.stm (reporting that only two people died in a
coastal village protected by a healthy mangrove forest, whereas approximately 6000 died in a nearby
village without mangroves); Guinea Bissau: Mangroves in Frontline Against Climate Change,
WETLANDS INT’L (Jan. 15, 2010), http://www.wetlands.org/NewsandEvents/GlobalNewsPressreleases/
tabid/60/articleType/ArticleView/articleId/2117/Default.aspx.
73. See B.T. Hargrave, Empirical Relationships Describing Benthic Impacts of Salmon
Aquaculture, 1 AQUACULTURE ENV’T INTERACTIONS 33, 33–34 (2010), available at http://www.intres.com/articles/aei2010/1/q001p033.pdf; Les Burridge et al., Chemical Use in Salmon Aquaculture: A
Review of Current Practices and Possible Environmental Effects, 306 AQUACULTURE 7, 7 (2010);
Eutrophication, U.S. GEOLOGICAL SURV., http://toxics.usgs.gov/definitions/eutrophication.html (last
updated May 23, 2013); “Dead Zone” Is a More Common Term for Hypoxia, NAT’L OCEANIC &
ATMOSPHERIC ADMIN., http://oceanservice.noaa.gov/facts/deadzone.html (last visited Sept. 22, 2013).
At the other extreme, shellfish aquaculture can actually clean water by filtering out nutrients. See
Fishing Methods, supra note 50.
74. See Fishing Methods, supra note 50; C.I.M. Martins et al., New Developments in
Recirculating Aquaculture Systems in Europe: A Perspective on Environmental Sustainability, 43
AQUACULTURAL ENGINEERING 83 (2010).
75. See Frequently Asked Questions About the Science Study on Contaminants in Farmed
Salmon, INST. FOR HEALTH & ENV’T, http://www.albany.edu/ihe/salmonstudy/faqs.html (last visited
Nov. 16, 2013).
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Environmental Impacts Related to the Trophic Level of Seafood Choices
Because the types of fish preferred by Americans (including tuna and
salmon) are high on the food chain, pound for pound, they have a much larger
SeafoodPrint76 than low-trophic level species, or even intermediate predators,
leading us to exploit more and more of the oceans in order to satisfy our desire
for these types of fish.77 A rough, back-of-the-envelope calculation shows that
eating 1 pound of a top predator (e.g., bluefin tuna, orange roughy, or salmon)
is comparable to eating 10 pounds of intermediate predators (e.g., pollock,
herring, and flying squid), 100 pounds of low-trophic-level consumers (e.g.,
anchovies and lobsters), or 1000 pounds of primary producers (phytoplankton,
algae, and aquatic plants).78
As of 2010, the United States had the third largest SeafoodPrint of any
country, lagging behind only China and Japan.79 Since we are partial to top
predators, in one year, we consume fish that require the equivalent of 768.3
billion pounds of primary production.80 If we were to double that amount, as
the Dietary Guidelines suggest—without switching to species that are lower on
the food chain—we would surpass the current SeafoodPrint of China,81 a
nation with a population more than four times the size of our own.82 Instead of
acknowledging and addressing our unsustainable preferences, the United States
and other wealthy nations, like Japan, have transformed “broader and broader
swaths of the high seas . . . from fallow commons into heavily exploited,
monopolized fishing grounds” and “spirited away” poorer nations’ “seafood
See supra note 19 (defining “SeafoodPrint”).
See generally Paul Greenberg, Time for a Sea Change, NAT’L GEOGRAPHIC, Oct. 2010,
available at http://ngm.nationalgeographic.com/2010/10/seafood-crisis/greenberg-text. The amount of
primary production that actually “moves up the food chain,” “sustain[ing] seafood production,” is
constrained by the amount actually consumed. Wilf Swartz et al., The Spatial Expansion and Ecological
Footprint of Fisheries (1950 to Present), 5 PLOS ONE e15143-1, e15143-5 (2010). Although “the
proportion of primary production [that] can be sustainably removed each year without compromising
ecosysem integrity” is not yet clear, “[i]n cases where fisheries capture more than 30% of local primary
production, they may be capturing most of the [primary production] available to fisheries.” Id. “With . . .
limited room for [fisheries] expansion, and excessive appropriation of primary production in many
regions, the only way toward sustainability of global fisheries goes through reduction of” fisheries’
SeafoodPrints. Id.
78. See Greenberg, supra note 77, illustrations at 82–85.
79. See id. at 84. As Greenberg explains,
Japan consumes . . . about 582 million metric tons [per year] in primary-production terms.
Though the average Chinese consumer generally eats smaller fish than the average Japanese
consumer does, China’s massive population gives it the world’s biggest seafood print, 694
million metric tons of primary production. The U.S., with both a large population and a
tendency to eat apex fish, comes in third: 348.5 million metric tons of primary production.
Id.
80. See id.
81. See id.
82. Compare The World Factbook: China, CENT. INTELLIGENCE AGENCY, https://www.cia.gov/
library/publications/the-world-factbook/geos/ch.html (last visited Nov. 16, 2013), with The World
Factbook: United States, CENT. INTELLIGENCE AGENCY, https://www.cia.gov/library/publications/theworld-factbook/geos/us.html (last visited Nov. 16, 2013).
76.
77.
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wealth.”83
D.
Health Effects Associated with Seafood Contamination by Toxic
Pollutants
The positive health benefits of eating seafood can be partially or
completely offset by the effects of toxic contaminants, especially methyl
mercury and persistent organic pollutants, including dioxins and PCBs.84
Contamination risks are generally highest with large, predatory fish, farmed
fish and shellfish, and freshwater fish, but local variations in the amount of
contamination can be significant.85 Therefore, it is imperative that advice to eat
more seafood comes with clear guidance about seafood contamination
advisories at international, national, and local levels.86
Approximately 60 percent of the types of fish and shellfish listed (without
health warnings)87 on USDA’s ChooseMyPlate nutrition advice website
present mercury or PCB contamination risks to some segment of the
83. Greenberg, supra note 77, at 84–85 (“Nations with money tend to buy a lot of fish, and a lot
of the fish they buy are large apex predators like tuna. . . . Poorer countries simply cannot afford to bid
for high-value species. Citizens in these nations can also lose out if their governments enter into fishing
or trade agreements with wealthier nations” in which “local fish are sold abroad and denied to local
citizens—those who arguably have the greatest need to eat them and the greatest right to claim them.”).
We have reached the point that “demand for seafood has now driven fishing fleets into every virgin
fishing ground in the world,” leaving “no new grounds left to exploit.” Id. at 85.
84. See, e.g., Pollutants in Wild Freshwater Fish Pose Public Health Risks, ENVTL. NEWS SERV.
(Nov. 8, 2007), http://www.ens-newswire.com/ens/nov2007/2007-11-08-01.html (describing study
finding that channel catfish caught in the Allegheny River near Kittanning, Pennsylvania, contained five
times the EPA acceptable risk limit for the general population); Fish: Friend or Foe?, HARV. SCH. PUB.
HEALTH, http://www.hsph.harvard.edu/nutritionsource/what-should-you-eat/fish/ (last visited Sept. 22,
2013).
85. See U.S. GEOLOGICAL SURVEY, MERCURY IN THE ENVIRONMENT (2000), available at
http://www.usgs.gov/themes/factsheet/146-00/ [hereinafter MERCURY IN THE ENVIRONMENT]; Rebecca
A. Lincoln et al., Fish Consumption and Mercury Exposure Among Louisiana Recreational Anglers, 119
ENVTL. HEALTH PERSPS. 245, 245 (2011) (explaining that methyl mercury “exposure assessments
among average fish consumers in the United States may underestimate exposures among U.S.
subpopulations with high intakes of regionally specific fish” and finding elevated exposure levels in
recreational fishermen in Louisiana eating many different species—nearly eighty were reported in
total—of locally caught fish).
86. See, e.g., Sofie Ström et al., Nutritional and Toxicological Aspects of Seafood Consumption—
An Integrated Exposure and Risk Assessment of Methylmercury and Polyunsaturated Fatty Acids, 111
ENVTL. RES. 274, 274 (2011) (highlighting “the importance of communicating species specific seafood
consumption advisories for women of childbearing age in general and for pregant women in particular,
while . . . encourag[ing] them to consume more seafood”).
87. See Protein Foods, supra note 12 (suggesting “[s]elect[ing] some seafood that is rich in
omega-3 fatty acids, such as salmon, trout, sardines, anchovies, herring, Pacific oysters, and Atlantic and
Pacific mackerel” but failing to mention mercury or other contamination risks). A different part of the
ChooseMyPlate website, not linked to the Protein Foods page, does mention mercury as a potential
problem for pregnant and nursing women. See Eating Fish While You Are Pregnant or Breastfeeding,
ChooseMyPlate, U.S. DEP’T AGRIC., http://www.choosemyplate.gov/pregnancy-breastfeeding/eatingfish.html (last visited Aug. 4, 2013) (suggesting pregnant or breastfeeding women (1) avoid “shark,
swordfish, tilefish, and King mackerel,” (2) “limit canned white tuna to less than 6 ounces per week,”
and (3) check local contamination advisories).
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population.88 Looking at this limited selection of data (there are many other
types of seafood, as well as other potential contamination risks), the 2010
Dietary Guidelines’ advice to pregnant and nursing women to stay away from
king mackerel, shark, swordfish, and tilefish, eat a variety of other seafood, and
limit their intake of albacore tuna89 falls far short.90
Methyl mercury is a potent neurotoxin (with especially devastating effects
on developing embryos and young children) that humans are primarily exposed
to by eating fish.91 Mercury from fossil-fuel burning and other anthropogenic
and natural sources makes its way into water, where it can be converted to
biologically active methyl mercury by microorganisms, ingested by fish, and
then concentrated with each step up the food chain; the result is that large,
predatory fish can contain very high levels of methyl mercury.92 Because
methyl mercury builds up in the body faster than it can be excreted (a process
known as bioaccumulation), the presence of even miniscule quantities in the
environment is magnified and can pose a significant health risk.93
A recent study of 184 samples of swordfish, tuna, and salmon from
restaurants and grocery stores in five states across the country found that, while
two-thirds of the grocery store samples had mercury levels “deemed unsafe for
consumption,” less than 20 percent had posted mercury warning signs.94
Meanwhile, a U.S. Geological Survey study of 291 sites in streams across the
country detected greater than 0.014 parts per million (ppm) of mercury in every
fish tested.95 Skinless fish filet mercury concentrations at over two-thirds of the
88.
89.
90.
See supra Table 1.
See DIETARY GUIDELINES, supra note 7, at xi, 34, 39.
See, e.g., Lincoln et al., supra note 85; Amy Halloran, Getting Out the Word on the Hudson’s
Fish, FOOD SAFETY NEWS (Apr. 4, 2011), http://www.foodsafetynews.com/2011/04/getting-the-wordout-about-hudsons-pcb-fish/ (discussing efforts to address the lack of local knowledge about PCB
contamination of fish in the Hudson River and mentioning that, since PCBs accumulate in fish fat,
discarding the skin and fat prior to cooking can halve PCB intake).
91. See MERCURY IN THE ENVIRONMENT, supra note 85; Mercury Health Effects, EPA,
http://www.epa.gov/mercury/effects.htm (last updated July 9, 2013).
92. See MERCURY IN THE ENVIRONMENT, supra note 85; see also Mercury Contamination, NAT.
RESOURCES DEF. COUNCIL, http://www.nrdc.org/health/effects/mercury/ (follow the “Learn more about
the dangerous effects of mercury” hyperlink) (last visited Oct. 16, 2013).
93. See MERCURY IN THE ENVIRONMENT, supra note 85; Mercury in the Food Chain, ENV’T
CAN., http://www.ec.gc.ca/mercure-mercury/default.asp?lang=En&n=d721ac1f-1 (last updated July 9,
2013); see also First Report on Bioaccumulation and Processing of Antibacterial Ingredient TCC in
Fish, AM. CHEMICAL SOC’Y (Mar. 30, 2011 16:42 EDT), http://www.acs.org/content/acs/en/
pressroom/newsreleases/2011/march/first-report-on-bioaccumulation-and-processing-of-antibacterialingredient-tcc-in-fish.html (describing bioaccumulation).
94. See GOTMERCURY, OPERATION SAFE SEAFOOD: AN INVESTIGATION OF MERCURY
CONTAMINATED SEAFOOD FROM GROCERY STORES AND RESTAURANTS ACROSS THE UNITED STATES 2
(2010), available at http://www.gotmercury.org/downloads/Operation%20Safe%20Seafood%202010:%
20%20United%20States.docx.
95. See BARBARA C. SCUDDER ET AL., U.S. GEOLOGICAL SURVEY, MERCURY IN FISH, BED
SEDIMENT, AND WATER FROM STREAMS ACROSS THE UNITED STATES 1998–2005, at 10, 50 (2009)
(finding mercury values that “ranged from 0.014 to 1.95 μg/g ww” with a “median value [of] 0.169 μg/g
ww”); David Gutierrez, 100 Percent of Fish in U.S. Streams Found Contaminated with Mercury,
NATURAL NEWS (Mar. 3, 2010), http://www.naturalnews.com/028284_fish_mercury.html.
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sample locations topped 0.1 ppm, the level “of concern for the protection of
fish-eating mammals, including mink and otters,” and 27 percent met or
exceeded the Environmental Protection Agency’s (EPA’s) human health
threshold of concern (0.3 ppm).96
Another concern, especially for wild-caught or farmed freshwater fish, is
pesticide residue. Pesticides are substances—including insecticides, herbicides,
and fungicides—intended to control pests.97 Because they are toxic by nature,
pesticides can negatively impact human, animal, and environmental health.98
Prior to a federal court of appeals decision in 2009, EPA did not consider
pesticides discharged into or over water to be pollutants requiring National
Pollutant Discharge Elimination System (NPDES) permits under the Clean
Water Act (CWA).99 New EPA regulations requiring a Pesticide General
Permit for certain targeted water or above-water applications kicked in on
October 31, 2011.100 Nonetheless, pesticides in “agricultural stormwater or
irrigation return flow” remain exempt from CWA permitting and other
environmental laws,101 leaving our nation’s streams and lakes at continued risk.
Additionally, chemicals used in many common household products,
pharmaceuticals, and industrial processes have made their way into rivers,
lakes, and the ocean. For example, marine and freshwater fish can be heavily
contaminated with polybrominated diphenyl ethers (PBDEs) and PCBs
(persistent organic chemicals used in flame retardants, insulation, and pigments
and dyes that are now banned in the United States).102 Similarly, triclocarban, a
common antibacterial soap ingredient, was recently discovered to be strongly
bioaccumulative in fish, although humans are thought to be able to metabolize
it successfully, avoiding bioaccumulation.103 Triclocarban is an endocrine
96.
97.
SCUDDER ET AL., supra note 95, at 50.
About Pesticides, EPA, http://www.epa.gov/pesticides/about/index.htm (last updated May 9,
2012).
98.
99.
See id.
See Nat’l Cotton Council v. EPA, 553 F.3d 927, 940 (6th Cir. 2009) (vacating EPA’s 2006
Final Rule on Aquatic Pesticides, which improperly treated pesticide residues as nonpoint source
additions to water, allowing them to evade CWA permitting requirements); Pesticide Applications, EPA,
http://cfpub.epa.gov/npdes/home.cfm?program_id=410 (last updated Feb. 16, 2012).
100. See Pesticide Applications, supra note 99.
101. See Pesticide Applications Frequently Asked Questions, EPA, http://cfpub.epa.gov/npdes/
faqs.cfm?program_id=410 (last updated Jan. 24, 2013) (explaining “[w]hich pesticide application
activities require NPDES permits”).
102. See Polychlorinated Biphenyl (PCB), EPA, http://www.epa.gov/osw/hazard/tsd/pcbs/
pubs/about.htm (last updated Jan. 31, 2013); Yin-ping Liu et al., Polybrominated Diphenyl Ethers
(PBDEs) and Indicator Polychlorinated Biphenyls (PCBs) in Marine Fish from Four Areas of China, 83
CHEMOSPHERE 168, 168 (2011).
103. See Press Release: First Report on Bioaccumulation and Processing of Antibacterial
Ingredient TCC in Fish, AM. CHEMICAL SOC’Y (Mar. 30, 2011), http://www.acs.org (search for title,
then follow hyperlink for article); see also Antoni J. Duleba et al., Effects of Triclocarban on Intact
Immature Male Rat: Augmentation of Androgen Action, 18 REPROD. SCI. 119 (2011), available at
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3031453/pdf/nihms 265754.pdf (describing effects of
triclocarban on male rats’ reproductive organs and human prostate cancer cells).
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disruptor, one of a group of compounds that includes “pharmaceuticals, dioxin
and dioxin-like compounds, polychlorinated biphenyls, DDT and other
pesticides, and plasticizers such as bisphenol A” found in many common
products.104 Endocrine disruptors can cause developmental, neurological,
reproductive, and immune problems in animals, including humans, by
mimicking natural hormones, blocking hormone receptors, or causing the body
to over- or underproduce hormones.105 A variety of pharmaceuticals—
including the antidepressants Prozac and Zoloft and the anti-anxiety drug
Oxazepam—pass unaffected through wastewater treatment plants and can
bioaccumulate in fish.106
II. FEDERAL FISHERIES MANAGEMENT
In order to achieve and maintain sustainable fisheries (so that we can take
the 2010 Dietary Guidelines’ advice and enjoy the health benefits of increased
seafood consumption, now and in the future), we need to find ways to mitigate
or avoid the negative impacts currently associated with U.S. and global
fisheries. For wild-caught fisheries, this means avoiding overfishing with
scientifically sound catch limits and off-limits areas like marine reserves107 and
significantly reducing bycatch and habitat destruction through fishing gear and
method restrictions. Aquaculture, too, needs tight regulation and sensible siting
restrictions that will minimize habitat destruction, pollution, and impacts to
wild fish populations. Effective enforcement is essential.
Given the imperfect world we live in today—in which sustainable
fisheries management is not a consistent reality—what is the United States
doing to address the situation? Will it be enough? U.S. fisheries management is
divided among overlapping federal, interstate, and state management systems.
International laws and multi-national agreements also come into play.
A.
Fishing in Federal Waters
Under the 1976 Magnuson-Stevens Fishery Conservation and
Management Act (MSA),108 NMFS regulates fishing in the U.S. Exclusive
Economic Zone (EEZ), which generally extends from 3 to 200 miles
104. Endocrine Disruptors, NAT’L INST. ENVTL. HEALTH SCIS., http://www.niehs.nih.gov/
health/topics/agents/endocrine/index.cfm (last visited Oct. 16, 2013).
105. See id.; What Are Endocrine Disruptors?, EPA, http://www.epa.gov/endo/pubs/
edspoverview/whatare.htm (last updated Oct. 16, 2013); Jacki Lopez, Endocrine-Disrupting Chemical
Pollution: Why the EPA Should Regulate These Chemicals Under the Clean Water Act, 10
SUSTAINABLE DEV. L. & POL’Y 19, 20–22 (2010).
106. See Pam Belluck, Traces of Anxiety Drug May Affect Behavior in Fish, N.Y. TIMES, Feb. 14,
2013,
http://www.nytimes.com/2013/02/15/science/traces-of-anxiety-drug-may-affect-fish-behaviorstudy-shows.html?_r=1&.
107. See Claudia E. Mills & James T. Carlton, Rationale for a System of International Reserves for
the Open Ocean, 12 CONSERVATION BIOLOGY 244 (1998).
108. 16 U.S.C. §§ 1801–1884 (2012).
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offshore.109 NMFS also maintains management authority over fisheries in state
coastal waters and over anadromous species during the inland parts of their life
cycles.110 The MSA embodies Congress’s intent “to take immediate action to
conserve and manage” these fishery resources,111 “to support and encourage
the implementation and enforcement of international fishery [conservation and
management] agreements” for highly migratory species,112 to establish eight
Regional Fishery Management Councils (RFMCs) that will prepare, monitor,
and revise fishery management plans to “achieve and maintain . . . the optimum
yield from each [EEZ] fishery,”113 and to promote U.S. utilization of
previously underutilized fisheries “in a non-wasteful manner.”114 Although the
MSA technically allows foreign countries to negotiate to fish within the
EEZ,115 almost no foreign fishing has occurred in U.S. waters since 1991 as
U.S. fishing capacity has grown to allow full exploitation of U.S. fisheries.116
The MSA lays out ten national standards by which all fishery management
plans must abide and directs the Secretary of Commerce to develop nonbinding
advisory guidelines to help RFMCs incorporate these standards into their
fishery management plans.117 National Standard 1 dictates that “[c]onservation
and management measures shall prevent overfishing while achieving, on a
continuing basis, the optimum yield from each fishery for the United States
fishing industry.”118 The MSA defines “optimum yield” as the quantity of fish
that:
(A) will provide the greatest overall benefit to the Nation, particularly with
109. See 16 U.S.C. § 1811(a); Wild-Caught Seafood: In the U.S., NAT’L OCEANIC &
ATMOSPHERIC ADMIN., http://www.fishwatch.gov/wild_seafood/in_the_us.htm (last visited May 15,
2013) (summarizing U.S. fisheries management).
110. See discussion infra Part II.B; 16 U.S.C. § 1811(b); NAT’L MARINE FISHERIES SERV.,
FISHERIES OF THE UNITED STATES 2009, at 84 (2010), available at http://www.st.nmfs.noaa.gov/
st1/fus/fus09/fus_2009.pdf. Anadromous fish spend at least part of their adult lives in salt water,
returning to fresh water to spawn. See 16 U.S.C. § 1802(1); Anadromous Fish Life History Profiles,
PAC. STATES MARINE FISHERIES COMMISSION, http://www.psmfc.org/habitat/edu_anad_table.html (last
modified Mar. 2, 2012).
111. 16 U.S.C. § 1801(b)(1).
112. Id. § 1801(b)(2). The MSA defines “highly migratory species” as “tuna species, marlin,
oceanic sharks, sailfishes, and swordfish.” Id. § 1802(21) (internal parentheticals omitted).
113. Id. §§ 1801(b)(4)–(5), 1852(a), (h). The eight RFMCs are: New England, Mid Atlantic, South
Atlantic, Gulf of Mexico, Pacific, North Pacific, Carribean, and Western Pacific. See Regional Fishery
Management Councils, NAT’L MARINE FISHERIES SERV., http://www.nmfs.noaa.gov/sfa/reg_
svcs/councils.htm (last visited Sept. 21, 2013).
114. 16 U.S.C. § 1801(b)(6).
115. Id. § 1821.
116. See id. § 1801(b)(6); FISHERIES OF THE UNITED STATES, supra note 110. The MSA defines
“[t]he total allowable level of foreign fishing, if any, with respect to any fishery subject to the exclusive
fishery management authority of the United States, is that portion of the optimum yield of such fishery
which cannot, or will not, be harvested by vessels of the United States.” 16 U.S.C. § 1821(d).
117. 16 U.S.C. § 1851. The Secretary of Commerce has delegated the task of developing
guidelines to NMFS. See, e.g., Magnuson-Stevens Act Provisions; Annual Catch Limits; National
Standard Guidelines, 74 Fed. Reg. 3178 (Jan. 16, 2009) (codified at 50 C.F.R. pt. 600) [hereinafter
National Standard Guidelines] (amending the guidelines for National Standard 1).
118. 16 U.S.C. § 1851(a)(1) (emphasis added).
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respect to food production and recreational opportunities, and taking into
account the protection of marine ecosystems;
(B) is prescribed on the basis of the maximum sustainable yield119 from the
fishery, as reduced by any relevant social, economic, or ecological factor;
and
(C) in the case of an overfished fishery, provides for rebuilding to a level
consistent with producing the maximum sustainable yield in such
fishery.120
To achieve National Standard 1, beginning in 2010 (for fisheries designated as
overfished) and 2011 (for other fisheries),121 fisheries management plans must
include mechanisms for setting annual catch limits (ACLs) and establishing
accountability measures to prevent overfishing.122 ACLs must be set at or
below the level recommended by each RFMC’s scientific and statistical
committee.123 If a fishery is identified as overfished, RFMCs must modify their
fishery management plans within two years “to end overfishing
immediately . . . and to rebuild affected stocks of fish” in as short a time as
possible, generally not to exceed ten years.124 Since 1997, NMFS has provided
Congress with an annual report on the status of U.S. fisheries,125 describing
fishery stocks that are overfished or subject to overfishing.126 The agency also
makes quarterly updates of its Fish Stock Sustainability Index, which tracks the
119. Maximum sustainable yield is “[t]he largest average catch or yield that can continuously be
taken from a stock under existing environmental conditions.” NAT’L OCEANIC & ATMOSPHERIC ADMIN.,
FISHERIES GLOSSARY 28 (2006), available at http://www.st.nmfs.noaa.gov/st4/documents/
FishGlossary.pdf.
120. 16 U.S.C. § 1802(33).
121. See Magnuson-Stevens Fishery Conservation and Management Act Reauthorized, NAT’L
MARINE FISHERIES SERV., http://www.nmfs.noaa.gov/msa2007/catchlimits.htm (last visited Aug. 4,
2013).
122. See 16 U.S.C. § 1853(a)(15); National Standard Guidelines, supra note 117, at 3180.
123. 16 U.S.C. § 1852(h)(6). Scientific and statistical committees provide RFMCs with “ongoing
scientific advice for fishery management decisions, including recommendations for acceptable
biological catch, preventing overfishing, maximum sustainable yield, and achieving rebuilding targets,
and report[] on stock status and health, bycatch, habitat status, social and economic impacts of
management measures, and sustainability of fishing practices.” Id. § 1852(g)(1)(B). Committee
members must be “Federal employees, State employees, academicians, or independent experts and shall
have strong scientific or technical credentials and experience.” Id. § 1852(g)(1)(C).
124. Id. § 1854(e). If an RFMC fails to comply, the Secretary of Commerce is bound to prepare a
fishery management plan or amendment “to stop overfishing and rebuild affected stocks of fish within 9
months.” Id. § 1854(e)(5).
125. See id. § 1854(e)(1). For links to reports, see Status of U.S. Fisheries, NAT’L MARINE
FISHERIES SERV. OFF. SUSTAINABLE FISHERIES, http://www.nmfs.noaa.gov/sfa/statusoffisheries/
SOSmain.htm (last visited Aug. 5, 2013); Status of Fisheries Archives, NAT’L MARINE FISHERIES SERV.
OFF. SUSTAINABLE FISHERIES, http://www.nmfs.noaa.gov/sfa/domes_fish/StatusoFisheries/SOF_
Archives.htm (last visited Nov. 16, 2013).
126. See, e.g., NAT’L MARINE FISHERIES SERV., STATUS OF STOCKS 2012, at 4–5 (2013), available
at http://www.nmfs.noaa.gov/stories/2013/05/docs/2012_sos_rtc.pdf. “Subject to overfishing” connotes
that harvest rates for a fish stock are above the level allowing maximum sustainable yield, while
“overfished” means that the biomass of a fish stock is “depleted to a degree that the stock’s capacity to
produce the [maximum sustainable yield] is jeopardized.” Id. at 2.
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health of 230 key fishery stocks, available on its website.127
NMFS assessments suggest the new ACLs are already making a positive
impact, and the outlook for achieving the end of overfishing in U.S. waters is
looking brighter. For example, in 2012, fewer fisheries experienced overfishing
than in previous years, and many overfished populations appeared to be
rebuilding.128 In 2012, the FAO reported that “67 percent of all [U.S.] stocks
are now being sustainably harvested.”129 On the other hand, there is still room
for improvement; 19 percent of assessed fishery stocks are overfished, and 10
percent are subject to overfishing.130 Additionally, the status of “a high
proportion of the most important stocks” remains unknown: “Of the 230 stocks
that contribute over 90 percent of total fishery landings, overfishing status is
known for [just] 85 percent and overfished status for [just] 77 percent.”131
The Marine Fish Conservation Network—a coalition of almost 200
organizations including the Marine Stewardship Council, Monterey Bay
Aquarium, Natural Resources Defense Council, Pew Environmental Group,
and a number of commercial and recreational fishing associations—lauds the
creation of “a responsive, adaptive and flexible framework” that can help stop
overfishing in U.S. waters but also warns Congress against complacency.132 It
argues that Congress must work to ensure full implementation of current MSA
requirements, reject political interventions that relax catch limits, and provide
funding adequate “to support vital data collection, catch monitoring, and stock
assessment science.”133 The coalition urges that restoring overfished stocks “to
healthy, productive levels is the best way to help fishermen and coastal
communities derive the greatest benefits from fisheries resources.”134
By contrast, opponents have suggested weakening the MSA. Citing job
losses due to what they see as overzealous catch limits, they have introduced
proposed legislation that would, for example, limit the power of RFMCs’
science and statistical committees in developing ACLs.135 H.R. 1646, floated in
2011, would have added a requirement for committee scientific advice to be
127.
128.
See Status of U.S. Fisheries, supra note 125.
See, e.g., STATUS OF STOCKS 2012, supra note 126, at 2, 4–5. Since 2000, thirty-two stocks
“have rebuilt to their target levels,” including six that achieved their targets during 2012. Id. at 2.
129. See STATE OF WORLD FISHERIES 2012, supra note 31, at 13.
130. See STATUS OF STOCKS 2012, supra note 126, at 2.
131. See id. at 2.
132. MARINE FISH CONSERVATION NETWORK, TAKING STOCK 2011: AN UPDATE ON EFFORTS TO
END OVERFISHING IN U.S. FISHERIES 1, 13 (2011), available at http://switchboard.nrdc.org/
blogs/dnewman/takingstock2011.pdf.
133. Id. at 2.
134. Id. at 13.
135. See, e.g., Kirk Moore, New Bill Aims to Cut Fishermen Some Slack, ASBURY PARK PRESS,
Apr. 21, 2011, http://www.app.com/article/20110421/NJSPORTS06/104210315/New-bill-aims-to-cutfishermen-some-slack. In July 2013, “members of New Hampshire’s congressional delegation argue[d]
that strict limits on certain species are putting coastal fishermen out of business,” and that the MSA
should “be retooled.” Abby Kessler, Ayotte Proposes to Ease Strict Fishing Limitations, N.H. NEWS
(July 23, 2013, 5:13 PM), http://www.nhpr.org/post/ayotte-proposes-ease-strict-fishing-limitations.
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“risk neutral,” barred committees from providing an ACL recommendation that
represents a 20 percent increase or decrease over the prior limit without
approval by “a peer review process conducted exclusively by nongovernmental entities,” extended the length of time allowed for rebuilding
overfished fisheries, and limited the Secretary’s ability to close fisheries.136
This type of pushback is shortsighted. In theory, there should be no tension
between fishing-industry interests and the MSA’s goal of achieving optimum
fisheries yields, which are directed at restoring and maintaining high fish
populations and high yields into the future.
B.
Federal Oversight of State Fisheries Management
In addition to governing fishing activities in the EEZ, NMFS oversees
three Interstate Marine Fishery Commissions—for the Atlantic, Gulf, and
Pacific states—that help manage coastal fisheries under state jurisdiction, those
within approximately three miles of the shoreline.137 A fourth, the Great Lakes
Fishery Commission, is a cooperative effort between federal, state, tribal, and
provincial agencies of the United States and Canada.138
Furthermore, each state has its own laws and regulations dealing with
fishing and fisheries management. For example, in California the primary
management agency is the Department of Fish and Wildlife, responsible for
administering and enforcing the California Fish and Game Code and Title 14 of
the California Code of Regulations.139 Where state regulations do not identify
species by name, they “may be taken without restriction” by commercial
fishermen; however, the state heavily regulates the types of fishing gear
commercial fishermen may use in specific situations.140 Additionally, the
Department of Fish and Wildlife controls recreational fisheries within the
state.141 States can sometimes affect global fisheries policy through marketrestricting legislation, like California’s ban on the possession, sale, trade, or
distribution of shark fins.142
136.
137.
American Angler Preservation Act, H.R. 1646, 112th Cong. §§ 2, 3, 6 (2011).
See 16 U.S.C. §§ 5101–5108 (2012); Fishery Commissions, NAT’L MARINE FISHERIES SERV.,
http://www.nmfs.noaa.gov/commissions.htm (last visited Nov. 16, 2013).
138. GREAT LAKES FISHERY COMMISSION, http://www.glfc.org/ (last visited Nov. 16, 2013).
139. See, e.g., CAL. DEP’T OF FISH & WILDLIFE, COMMERCIAL FISHING DIGEST 2013–2014, at 4
(2013), available at https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=62846&inline=true.
140. See id.
141. See Sport Fishing in California, CAL. DEP’T FISH & WILDLIFE, http://www.dfg.ca.
gov/Fishing/ (last visited Oct. 16, 2013).
142. See CAL. FISH & GAME CODE § 2021 (West 2012); see also Patricia Leigh Brown, Soup
Without Fins? Some Californians Simmer, N.Y. TIMES, Mar. 5, 2011, http://www.nytimes.com/2011/
03/06/us/06fin.html. The cruel and wasteful practice of shark finning is illegal in U.S. waters, but
California’s large Asian population provided a big market for fins taken elsewhere. See Stephanie
Ulmer, Proposed California Law Would Ban Shark Fin Soup, ANIMAL LEGAL DEF. FUND (Mar. 17,
2011), http://www.aldf.org/article.php?id=1643. New York will join California and six other states when
its prohibition on the sale of shark fins goes into effect in July 2014. See Eleanor Randolph, Shark Fins
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781
Federal Aquaculture Law and Policy
Although most aquaculture production in the United States takes place in
inland areas and coastal waters that fall under state jurisdiction, NOAA plays a
permitting and oversight role and supports aquaculture research through the
National Marine Aquaculture Initiative.143 Congress intended the National
Aquaculture Act of 1980144 “to encourage the development of aquaculture in
the United States” by requiring the development of a National Aquaculture
Development Plan, aquaculture research, and studies to determine how to
“remove unnecessarily burdensome regulatory barriers to the initiation and
operation of commercial aquaculture ventures.”145 NOAA and Department of
Commerce released National Aquaculture Policies in June 2011.146 So far,
federal governance of aquaculture seems to be based on its interface with nonaquaculture-specific laws (like the CWA) and regulations.147
D.
The International Arena: International Law and Trade
Given that we imported about 91 percent of the seafood we ate in 2011—
about 5.3 billion pounds, mainly from China, Thailand, Canada, Indonesia,
Vietnam, and Ecuador (in order of decreasing import quantity)148—success in
achieving sound domestic fisheries management can, at best, ensure that a
small fraction of the seafood we eat is sustainable. How likely are we to be able
to influence fisheries management around the world on a timescale that can
respond effectively to the 2010 Dietary Guidelines’ call to double seafood
consumption? The prospect is daunting.
A complex system of overlapping international treaties and other
agreements—including, but not limited to, the 1982 U.N. Convention on the
Law of the Sea (UNCLoS), the 1993 FAO Compliance Agreement, the 1995
U.N. Fish Stocks Agreement, the 2009 FAO Port State Measures Agreement,
or Champagne?, N.Y. TIMES, Aug. 3, 2013, http://www.nytimes.com/2013/08/04/opinion/sunday/
shark-fins-or-champagne.html.
143. See Office Priorities, NAT’L OCEANIC & ATMOSPHERIC ADMIN., http://www.nmfs.noaa.gov/
aquaculture/about_us/office_priorities.html; About the National Marine Aquaculture Initiative, NAT’L
OCEANIC & ATMOSPHERIC ADMIN., http://www.nmfs.noaa.gov/aquaculture/funding/nmai.html (last
visited May 23, 2013).
144. 16 U.S.C. §§ 2801–2810 (2012).
145. Id. §§ 2801(b), (c), 2803, 2804(c), 2808.
146. See Department of Commerce and NOAA Aquaculture Policies, NAT’L OCEANIC &
ATMOSPHERIC ADMIN., http://www.nmfs.noaa.gov/aquaculture/policy/2011_policies_homepage.html
(last visited Aug. 5, 2013); see also NAT’L OCEANIC & ATMOSPHERIC ADMIN., MARINE AQUACULTURE
POLICY 1 (2011), available at http://www.nmfs.noaa.gov/aquaculture/docs/policy/noaa_aquaculture_
policy_2011.pdf.
147. See Aquaculture Operations—Laws, Regulations, Policies, and Guidance, EPA,
http://www.epa.gov/agriculture/anaqulaw.html (last updated June 27, 2012) (providing “[i]nformation
about environmental laws and regulations that affect aquaculture operations”).
148. See Farmed Seafood: Outside the U.S., supra note 67; NAT’L MARINE FISHERIES SERV.,
FISHERIES OF THE UNITED STATES 2011, at 58, 61 (Alan Lowther ed., 2012), available at
http://www.st.nmfs.noaa.gov/Assets/commercial/fus/fus11/FUS2011.pdf.
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and CITES—affects “high seas” (and sometimes national) fisheries
management.149 International agreements are especially important for the
management of “straddling stocks,” anadromous species, and highly migratory
species, which either straddle political boundaries or regularly migrate across
them so that populations may be affected by activities in widely separated
locations.150 Generally, only parties to these agreements are bound by them,151
unless their tenets are also considered to be part of customary international
law.152 In a regrettable failure of international leadership, the United States has
failed to ratify UNCLoS, lessening its leverage in this arena.153
Legally binding agreements are supplemented by purely voluntary
international instruments, like the Code of Conduct for Responsible Fisheries,
which is not internationally enforceable but is instead intended to be invoked to
justify domestic policy initiatives and legislation.154 Additionally, groups of
nations that share fishing interests in a particular region or highly migratory
species have formed Regional Fisheries Management Organizations (RFMOs)
that, depending on the terms of the agreements that create them, range from
purely advisory bodies to organizations whose decisions are legally binding on
their members.155 Unfortunately, the frequent lack of meaningful consequences
for rule breakers, even in RFMOs, allows member states to undertake
biologically risky levels of fishing that jeopardize fisheries with impunity.156
149. See generally ERICK FRANCKX, FOOD & AGRIC. ORG. OF THE UNITED NATIONS, THE
RELATIONSHIP BETWEEN CITES, FAO AND RELATED AGREEMENTS: LEGAL ISSUES (2011) [hereinafter
FAO LEGAL ISSUES], available at http://www.fao.org/docrep/013/i1976e/i1976e00.pdf; Tyler, supra
note 21; see also FRANCISCO ORREGO VICUÑA, THE CHANGING INTERNATIONAL LAW OF HIGH SEAS
FISHERIES 31 (1999); FAO Compliance Agreement, FOOD & AGRIC. ORG. UNITED NATIONS,
http://www.fao.org/fishery/topic/14766/en (last visited Nov. 16, 2013). For example, in an attempt to
address the problem of fishing vessels reflagging to avoid being subject to specific international
conservation and management agreements, the 1993 FAO Compliance Agreement requires parties to
“ensure that fishing vessels entitled to fly its flag do not engage in any activity that undermines the
effectiveness of international conservation and management measures.” FAO Compliance Agreement,
supra.
150. See VICUÑA, supra note 149, at 32–33, 40–41. Straddling stocks “occur . . . in the exclusive
economic zone of two or more coastal states or in the exclusive economic zone and an area of the high
seas adjacent to and beyond this zone.” Id. at 41.
151. See, e.g., FREDERIC L. KIRGIS, AM. SOC’Y OF INT’L LAW, TREATIES AS BINDING
INTERNATIONAL OBLIGATION (1997), available at http://www.asil.org/insight9.cfm.
152. See, e.g., Customary International Humanitarian Law, INT’L COMMITTEE RED CROSS,
http://www.icrc.org/eng/war-and-law/treaties-customary-law/customary-law/index.jsp (last visited Nov.
16, 2013) (“Customary International Law is made up of rules that come from ‘a general practice
accepted as law’ and that exist independent of treaty law.”).
153. See, e.g., Thad W. Allen et al., Odd Man Out at Sea: The United States and UNCLOS,
CENTER FOR STRATEGIC & INT’L STUD. (Apr. 25, 2011), http://cogitasia.com/odd-man-out-at-sea-theunited-states-and-unclos/.
154. See FAO Compliance Agreement, supra note 149.
155. See Regional Fisheries Management Organisations (RFMOs), EUR. COMMISSION
DIRECTORATE-GEN. FOR MAR. AFF. & FISHERIES, http://ec.europa.eu/fisheries/cfp/international/
rfmo/index_en.htm (last updated June 2, 2013).
156. See Andrew Serdy, Accounting for Catch in Internationally Managed Fisheries: What Role
for State Responsibility?, 15 OCEAN & COASTAL L.J. 23, 24–25 (2010).
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Given the complexity, inconsistency, and patchiness of this network of
international fisheries agreements, it is tempting to consider the idea of
instituting an outright ban on imports of seafood caught or produced
unsustainably. However, such an action would likely run afoul of the General
Agreement on Tariffs and Trade (GATT). Article XX(g) of GATT—which
allows nondiscriminatory trade restrictions to further “the conservation of
exhaustible natural resources”157—does not apply to natural resources outside
the trade-restricting state’s jurisdiction.158 Because CITES is more recent,
parties to both GATT and CITES formerly had to apply the conflicting
provisions of CITES, which “allow[] [s]tate[] parties to protect non-domestic
species through trade restrictions.”159 However, in 1994, the World Trade
Organization (WTO) Agreement effectively reset GATT’s “date from 1947 to
1994,” “leapfrogg[ing] [GATT] over most environmental treaties using trade
measures, including CITES,” and apparently preventing state parties from
using trade restrictions to protect species outside their jurisdictions.160
Nonetheless, in 2001, the WTO Appellate Body’s ruling in the ShrimpTurtle case indicated that environmental trade restrictions, including “unilateral
import bans” intended to protect nondomestic resources can be acceptable
under GATT, if “they avoid unfair discrimination.”161 Because this decision
emphasized that the trade-restricting party would need to have first made “good
faith efforts to reach international agreements” on the issue, the WTO would
undoubtedly frown upon a blanket ban on unsustainable imports (which would
likely be politically infeasible, even if acceptable to the WTO). Therefore, the
United States would need to enact WTO-compliant bans piecemeal, based on
the facts associated with each individual fishery and only after international
negotiations failed.162
The difficulty of directly regulating management of fisheries partially or
entirely located in non-U.S.-controlled waters highlights the need to use other
methods of influence. If the federal government cannot (or will not) import-ban
157.
General Agreement on Tariffs and Trade art. XX, Oct. 30, 1947, 24 U.S.T. 146, 55 U.N.T.S.
187.
158.
159.
160.
See FAO LEGAL ISSUES, supra note 149, at 59.
See id. at 59, 59 n.386.
Id. at 59–60. Note that the principle of lex specialis potentially provides some relief here,
because “multilateral environmental agreements . . . are [usually] much more specific than the general
provisions of the WTO Agreement.” Id. at 60.
161. Howard F. Chang, Environmental Trade Measures, the Shrimp-Turtle Rulings, and the
Ordinary Meaning of the Text of the GATT, 8 CHAP. L. REV. 25, 33–34, 50 (2005); see also Appellate
Body Report, United States—Import Prohibition of Certain Shrimp and Shrimp Products, ¶ 135,
WT/DS58/AB/RW (Oct. 22, 2001) (holding that U.S. ban on shrimp imports from foreign countries that
lacked a comparably effective regulatory program for the incidental taking of sea turtles was valid),
available at http://www.worldtradelaw.net/reports/wtoab/us-shrimp(ab)(21.5).pdf; see also Tyler, supra
note 21, at 87–88 (arguing that Shrimp-Turtle indicates that “RFMOs and other fisheries MEAs
[multilateral environmental agreements] can adopt trade measures as an enforcement mechanism
without violating the WTO” Agreement).
162. See, e.g., Chang, supra note 161, at 33–34.
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its way to sustainable seafood, it can still use its bully pulpit to persuade the
people of the United States to wield the collective power of their pocketbooks
to demand more-sustainable seafood.
III. USING THE BULLY PULPIT: THE CRUCIAL ROLE OF “RECOMMENDATIONS”
While there is no guarantee Americans will follow federal advice about
food choices, the size of the government’s megaphone ensures that a significant
portion of the population will likely hear its message. That is half the battle.
People need to recognize there is a problem and their personal food-choice and
purchasing decisions are important to its solution. Without government buy-in
to clearly and authoritatively communicating the issues, we can only expect the
existence of seafood sustainability guides163 and seafood certification
programs164 to get us so far. To this end, the Dietary Guidelines for Americans
and all federal programs and activities that flow from them must integrate
environmental sustainability considerations into policy development and
specific implementation. Unfortunately, the Guidelines currently ignore the
issue of sustainability altogether.
A.
The 2010 Dietary Guidelines for Americans
Although the federal government has issued nutritional guidance for more
than 100 years,165 it first issued the Dietary Guidelines in 1980.166 The
National Nutrition Monitoring and Related Research Act of 1990 requires that
USDA and HHS produce updated guidelines at least every five years.167 In
163. See,
e.g.,
Seafood
Recommendations,
MONTEREY
BAY
AQUARIUM,
http://www.montereybayaquarium.org/cr/cr_seafoodwatch/sfw_recommendations.aspx (last visited
Nov. 16, 2013); FishOnline, MARINE CONSERVATION SOC’Y, http://www.fishonline.org/ (last visited
Nov. 16, 2013); Sustainable Seafood Program, BLUE OCEAN INST., http://blueocean.org/
programs/sustainable-seafood-program/ (last visited Nov. 16, 2013); Red List Fish, GREENPEACE,
http://www.greenpeace.org/usa/en/campaigns/oceans/seafood/red-fish/ (last visited Nov. 16, 2013);
2013 Seafood Sustainability Scorecard, GREENPEACE, http://www.greenpeace.org/usa/en/campaigns/
oceans/seafood/ (last visited Nov. 16, 2013); SEACHOICE, http://www.seachoice.org/ (last visited Nov.
16, 2013); see also Cathy A. Roheim, An Evaluation of Sustainable Seafood Guides: Implications for
Environmental Groups and the Seafood Industry, 24 MARINE RESOURCES ECON. 301 (2009).
164. See, e.g., MARINE STEWARDSHIP COUNCIL, http://www.msc.org/ (last visited Nov. 16, 2013);
BEST AQUACULTURE PRACTICES CERTIFICATION, http://www.responsibleseafood.org/ (last visited Oct.
17, 2013); FRIEND OF THE SEA, http://www.friendofthesea.org/ (last visited Oct. 17, 2013); Sustainable
Seafood, GREENPEACE, http://www.greenpeace.org/usa/en/campaigns/oceans/seafood/certification/ (last
visited May 17, 2013) (follow links at bottom to see what Greenpeace sees as the strengths and
weaknesses of each of these programs).
165. See Carole Davis & Etta Saltos, Dietary Recommendations and How They Have Changed
Over Time, in AMERICA’S EATING HABITS: CHANGES AND CONSEQUENCES 33, 33–35 (Elizabeth Frazao
ed., 1999), available at http://www.ers.usda.gov/publications/aib750/.
166. See CTR. FOR NUTRITION POLICY & PROMOTION, U.S. DEP’T OF AGRIC., 2010 DIETARY
GUIDELINES FOR AMERICANS BACKGROUNDER: HISTORY AND PROCESS 2 (2010) [hereinafter
BACKGROUNDER], available at http://www.cnpp.usda.gov/Publications/DietaryGuidelines/2010/Policy
Doc/Backgrounder.pdf.
167. See 7 U.S.C. § 5341(a)(1) (2012).
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addition to providing the general public with nutritional advice to “promote
health and reduce disease risk,” the Guidelines “establish the scientific and
policy basis” for all federal food, nutrition, and health programs.168 Thus,
Congress intended the Guidelines to be much more than mere advice when it
comes to federal government programs.
For the most recent update, the Dietary Guidelines Advisory Committee
(DGAC), composed of thirteen experts in the fields of health and nutrition,
undertook a detailed review of the 2005 Dietary Guidelines and recent
scientific and medical developments, submitting its advisory report to USDA
and HHS in June 2010.169 After soliciting public comment on the report,
nutritionists from USDA’s Center for Nutrition Policy and Promotion and
HHS’s Office of Disease Prevention and Health Promotion “translated” it into
the 2010 Dietary Guidelines.170
The Center for Nutrition Policy and Promotion’s website contains the final
2010 Guidelines, the 445-page DGAC advisory report, links to public
comments, and other related materials that seem geared toward the nutrition
expert.171 Indeed, the 100-plus-page Dietary Guidelines document is too long
and detailed for general consumption and is primarily aimed at helping
nutrition and health professionals develop educational materials and providing
policymakers with a basis for creating and implementing nutrition-related
programs.172 It discusses the links between eating behaviors and obesity and
provides context for twenty-three general recommendations and six
recommendations directed at specific subsets of the American population.
General recommendations include encouraging everyone over the age of two
to: eat only enough calories to achieve and maintain a healthy weight; get more
exercise; reduce consumption of foods high in solid fats, sugar, refined grains,
meat and poultry, and sodium; cut synthetic trans fats from their diets; and
increase consumption of nutrient-dense foods, including vegetables, dried
legumes, fruits, whole grains, nuts, seeds, low-fat and fat-free dairy products,
and seafood.173 Additionally, the Guidelines encourage people over age fifty to
get extra vitamin B12; women “capable of becoming pregnant” to eat more
iron-, vitamin-C-, and folate-rich foods and to consume 400 micrograms of
synthetic folic acid daily; and pregnant or breastfeeding women to take an iron
supplement and eat eight to twelve ounces of seafood each week while limiting
their intake of albacore tuna to six ounces and avoiding tilefish, shark,
168.
169.
170.
171.
BACKGROUNDER, supra note 166, at 2; see also 7 U.S.C. § 5341(a)(1).
See BACKGROUNDER, supra note 166, at 2–3.
Id. at 4.
See Dietary Guidelines for Americans, U.S. DEP’T AGRIC., http://www.cnpp.usda.gov/
DietaryGuidelines.htm (last updated Aug. 15, 2013).
172. See BACKGROUNDER, supra note 166, at 4. Nonetheless, the document is relatively painless
to skim, with “Key Recommendations” and other take-away points set off in boxes and numerous charts
and tables summarizing important data.
173. See DIETARY GUIDELINES, supra note 7, at x–xi.
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swordfish, and king mackerel.174
HHS’s Health.gov website, on the other hand, seems to be directed more
toward the general public. In addition to making the Dietary Guidelines
document available, it boils everything down to three bullet points:

Balance calories with physical activity to manage weight

Consume more of certain foods and nutrients such as fruits,
vegetables, whole grains, fat-free and low-fat dairy products, and
seafood

Consume fewer foods with sodium (salt), saturated fats, trans fats,
cholesterol, added sugars, and refined grains175
The Guidelines explain that, by the directive to “consume more seafood,” the
federal government has in mind that we each increase our average intake from
about 3.5 ounces of seafood per week to more than 8 ounces per week (up to 12
ounces for pregnant and nursing women) of a variety of seafood.176 In other
words, this single document recommends more than doubling our national
demand for seafood.177
To back up the recommendations, the Dietary Guidelines devote most of a
page to describing the cardiovascular benefits of omega-3 fatty acids as
outweighing potential methyl-mercury risks as well as advocating that
Americans “eat[] a variety of seafood . . . that emphasizes choices relatively
low in methyl mercury.”178 Salmon, anchovies, herring, sardines, trout,
Atlantic and Pacific mackerel, and Pacific oysters are highlighted as choices
that are rich in omega-3’s but “lower in mercury.”179 An appendix gives
estimates of omega-3 fatty acids and mercury content for selected varieties of
seafood.180
174.
175.
See id. at xi.
Dietary Guidelines for Americans: Overview, 2010, U.S. DEP’T HEALTH & HUM. SERVS.,
http://health.gov/dietaryguidelines/2010.asp#overview (last visited Nov. 16, 2013).
176. See DIETARY GUIDELINES, supra note 7, at 34, 39, 46 fig.5-1, 51 tbl.5-1.
177. What is “seafood,” anyway? Although the term literally ought to be restricted to marine (saltwater) species, it is commonly used in a broader sense that includes freshwater animals (with the
exception of mammals) eaten by humans. See Seafood, ENCYCLOPEDIA BRITANNICA ONLINE,
http://www.britannica.com/EBchecked/topic/530850/seafood (last visited Nov. 16, 2013) (defining
seafood to include all “edible aquatic animals, excluding mammals, but including both freshwater and
ocean creatures”). The 2010 Dietary Guidelines state, somewhat inelegantly, that “[s]eafood is a large
category of marine [sic] animals that live in the sea and in freshwater lakes and rivers.” DIETARY
GUIDELINES, supra note 7, at 38, 94.
178. DIETARY GUIDELINES, supra note 7, at 39. Pregnant and nursing women are advised to only
choose from seafood that is “lower in methyl mercury,” but to eat even more of it based on the benefits
of omega-3 fatty acids for fetal development. Id.
179. Id.
180. See id. at 85–86. But see David J.A. Jenkins et al., Are Dietary Recommendations for the Use
of Fish Oils Sustainable?, 180 CANADIAN MED. ASS’N J. 633, 636 (2009) (concluding that “it would
seem responsible to refrain from advocating to people in developed countries that they increase their
intake of long-chain omega-3 fatty acids through fish consumption” because the evidence for benefits
“is not as clear-cut” as some suggest).
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B.
787
The Guidelines Ignored DGAC References to Environmental
Sustainability
Although the word “environment” appears more than twenty times in the
2010 Dietary Guidelines, it never alerts readers to the important relationship
between our food choices and the health of our physical environment. Instead,
the document invokes the term to describe the also important social and
economic context that shapes our food choices and physical activity decisions.
The Guidelines advocate a holistic approach to promoting nutrition and
physical activity,181 recognizing that American citizens ultimately make their
own choices but are heavily influenced by the information and opportunities
available to them.182 They emphasize that “actions are best sustained when
developed, implemented, and evaluated by supporters across multiple levels of
influence” so that “[p]ositive changes . . . will require broad, cooperative, and
sustainable efforts by all.”183
In fact, the only sentence in the Dietary Guidelines that hints at the
environmental consequences of food comes within “a call to action” to
“[e]nsure that all Americans have access to nutritious foods and opportunities
for physical activity.”184 To meet that goal, the guidelines’ suggestions include
working to “[d]evelop and expand safe, effective, and sustainable agriculture
and aquaculture practices to ensure availability of recommended amounts of
healthy foods to all segments of the population.”185
This appears to be the sole remnant of several brief mentions of
environmental sustainability in the DGAC report, upon which the 2010 Dietary
Guidelines are based. For example, the report contains a similar “call to action”
to the one described above, but it is more detailed, pushing for
[i]ncreas[ing] environmentally sustainable production of vegetables, fruits,
and fiber-rich whole grains[,] . . . [d]evelop[ing] safe, effective, and
sustainable practices to expand aquaculture and increase the availability of
seafood to all segments of the population[,] . . . [and] [e]nhanc[ing] access
to publicly available, user-friendly benefit/risk information that helps
consumers make informed seafood choices.186
The call for risk/benefit information appears to be directed only at providing
181. DIETARY GUIDELINES, supra note 7, at 56 (“[A] Social-Ecological Model can help us
understand the roles that various segments of society can play in making healthy choices more widely
accessible and desirable. The model considers the interactions between individuals and families,
environmental settings and various sectors of influence, as well as the impact of social and cultural
norms and values.”).
182. See id. at 57.
183. Id.
184. Id.
185. Id. (emphasis added).
186. DIETARY GUIDELINES ADVISORY COMM., U.S. DEP’T OF AGRIC. & U.S. DEP’T OF HEALTH &
HUMAN SERVS., REPORT OF THE DIETARY GUIDELINES ADVISORY COMMITTEE ON THE DIETARY
GUIDELINES FOR AMERICANS 2010 2–3, 55 (2010) [hereinafter DGAC REPORT], available at
http://www.cnpp.usda.gov/dgas2010-dgacreport.htm.
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the public with adequate information about the direct health risks (methyl
mercury and persistent organic pollutants) and health benefits of eating
different types of seafood.187 Nonetheless, the calls for more sustainable
agriculture and aquaculture are promising.188 In at least two instances, the
committee also recognizes that actually implementing its recommendations
would create significant new demands on our natural resources:
Population growth, availability of fresh water, arable land constraints,
climate change, current policies, and business practices are among some of
the major challenges that need to be addressed in order to ensure that these
recommendations can be implemented nationally. For example, if every
American were to meet the vegetable, fruit, and whole-grain
recommendations, domestic crop acreage would need to increase by an
estimated 7.4 million harvested acres.189
and,
[The evidence suggesting that plant-derived omega-3 fatty acids are not as
protective as those found in seafood] increases the need for efficient and
ecologically friendly strategies to allow for greater consumption of seafood
n-3 fatty acids . . . .190
It would have behooved the 2010 Dietary Guidelines to retain these minimal
references to environmental impacts and sustainability.
C.
The Guidelines Failed to Consider Environmental Impacts
As Maya Joseph and Marion Nestle point out, widely given dietary advice
can have significant unintended, yet quite foreseeable, environmental
consequences.191 For example, the general recommendation to eat less
saturated fat will likely guide people to shift their protein intake from beef to
chicken, lean pork, or fish. Increased chicken and pork consumption will likely
mean more concentrated animal feeding operations that pose pollution and
disease risks, and increased fish consumption will contribute to overfishing,
habitat destruction, biodiversity loss, and pollution.192 After a summer 2010
187.
188.
See, e.g., id. at 385–87, 425.
Interestingly, the committee briefly discussed the health effects of organic produce in a
supplement to its main report, concluding that there is not sufficient proof that organic foods are
nutritionally superior to conventional ones and declining to discuss them in the main report. See id. at
369; DIETARY GUIDELINES ADVISORY COMM., U.S. DEP’T OF AGRIC. & U.S. DEP’T OF HEALTH &
HUMAN SERVS., RESOURCE 3: CONVENTIONAL AND ORGANICALLY PRODUCED FOODS 2 (2010),
available at http://www.cnpp.usda.gov/Publications/DietaryGuidelines/2010/DGAC/Report/Resource3Organics.pdf. However, the DGAC failed to examine studies about the health impacts of pesticide
residues or to take into account the broader public health and environmental consequences of using
conventional farming versus organic. These are the reasons most people give for purchasing organic
foods, so the committee’s treatment of the issue is something of a strawman.
189. DGAC REPORT, supra note 186, at 55.
190. Id. at 238 (emphasis added).
191. See Maya Joseph & Marion Nestle, The Ethics of Food, REALITY SANDWICH (Oct. 22, 2009),
http://www.realitysandwich.com/ethics_food.
192. See id.; discussion supra Part I.
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trip to visit Alaskan salmon fisheries, Nestle blogged about the experience,
concluding: “I could not help thinking about federal dietary guidelines. . . . If
we want to continue to have fish to eat, we must pay attention to” issues like
fishery sustainability, bycatch, and waste.193
Even assuming no direct connection between resource sustainability and
human health, failure to account for the environmental impacts of seafood
choices is shortsighted and counterproductive. For the U.S. population to derive
a long-term health benefit from seafood consumption, fish and shellfish must
continue to be available in sufficient quantities into the future. Indeed, the
United Kingdom’s Sustainable Development Commission put out a 2009 study
exploring the relationship between nutrition, food choices, food security, and
the environment that made exactly this point: “[P]ublic health problems
resulting from a lack of fish will be far worse in the long term if stocks are
depleted to the point of no return.”194 The report mentioned that the UK’s own
Food Standards Agency (FSA) had recently revised its consumer nutrition
advice regarding fish and shellfish to include sustainability information,
suggesting this might serve as a useful model for how health and environmental
advice could be integrated for other food choices.195 This change followed a
193. Marion Nestle, Wild Alaskan Salmon: Food Politics in Action, FOOD POLITICS (June 21,
2010), http://www.foodpolitics.com/2010/06/wild-alaskan-salmon-food-politics-in-action/.
194. SUSTAINABLE DEV. COMM’N, SETTING THE TABLE: ADVICE TO GOVERNMENT ON PRIORITY
ELEMENTS OF SUSTAINABLE DIETS 3,
43 (2009),
available at
http://www.sdcommission.org.uk/publications.php?id=1033. Unfortunately, the decade-old independent government
watchdog agency was subsequently scrapped by the Coalition government to save money. See Damian
Carrington, Goodbye Sustainable Development Commission, Hello Hot Air, THE GUARDIAN (Mar. 31,
2011, 17:07 BST), http://www.guardian.co.uk/environment/damian-carrington-blog/2011/mar/31/
sustainable-development-commission; Mark Kinver, UK Government Axes Its Sustainability Watchdog,
BBC NEWS, July 22, 2010, http://www.bbc.co.uk/news/science-environment-10725394. Ironically, the
decision to axe the commission suffered from precisely the type of short-sightedness its report had
warned against—saving a buck now will be very expensive in the future. Together with the Royal
Commission on Environmental Pollution (another government watchdog cut in the “bonfire of the
quangos”—quasi-autonomous nongovernmental organizations), the commission cost UK taxpayers
about £5 million per year but had already been saving the government £60–70 million per year through a
program of energy efficiency measures it had promoted and was regulating, with promise for
significantly more savings to come as additional measures were instituted. See Guy Shrubsole,
Sustainable Development? So Far, It’s Mostly Been Slash-and-Burn, LEFT FOOD FORWARD (July 26,
2010, 4:13 PM), http://www.leftfootforward.org/2010/07/sustainable-development-so-far-its-mostlybeen-slash-and-burn/; Press Ass’n, Whitehall’s Green Efforts Saving Taxpayers £70m a Year, Watchdog
Says, THE GUARDIAN, July 22, 2010, http://www.guardian.co.uk/environment/2010/jul/22/whitehallgreen-government-savings?intcmp=239.
195. See SUSTAINABLE DEV. COMM’N, supra note 194, at 43. As part of the FSA’s Eat Well
program, the webpage on fish and shellfish (one of eight “nutrition essentials”) explained the health
benefits of different types of seafood, discussed health risks from dioxins, PCBs, and mercury, and
delved into sustainability issues, offering practical advice for choosing responsibly managed seafood.
See Fish and Shellfish, FOOD STANDARDS AGENCY, http://collections.europarchive.org/tna/
20100927130941/http://www.eatwell.gov.uk/healthydiet/nutritionessentials/fishandshellfish/#cat516851
(archive created Sep. 27, 2010); see also Fish Sustainability, FOOD STANDARDS AGENCY,
http://tna.europarchive.org/20120419000433/http://www.food.gov.uk/foodindustry/farmingfood/fish/
(archive created April 9, 2012). Unfortunately, the FSA no longer provides dietary advice, that duty
having been transferred to the National Health Service, which currently gives only minimal dietary
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review sparked by concerns that official advice to simply eat more fish could
have devastating environmental consequences.196
Even if it would be ethically responsible (and commonsensical) to
consider them, many probably assume that USDA and HHS can legally ignore
the foreseeable environmental impacts of their dietary advice because worrying
about environmental sustainability is not in their job descriptions. There are
several reasons this assumption is inaccurate. USDA (the lead agency for the
2010 Dietary Guidelines) provides a good example. First, USDA’s mission—
”provid[ing] leadership on food, agriculture, natural resources, rural
development, nutrition, and related issues based on sound public policy, the
best available science, and efficient management”197—undoubtedly invokes
environmental concerns. Second, USDA is home to the Forest Service198 (one
of two agencies charged with managing most federal public lands) and the
Natural Resources Conservation Service,199 and it administers many other
programs with an environmental focus.200 Therefore, the Department boasts
significant expertise in the area of environmental analysis and is well versed in
our nation’s environmental laws. USDA regulations affirm that all USDA
agency programs and policies will be “planned, developed, and implemented”
following National Environmental Policy Act (NEPA) procedures.201
Furthermore, “in order to assure responsible stewardship of the environment for
present and future generations,” USDA explicitly requires its agencies to plan,
develop, and implement their programs and policies “to achieve [NEPA’s]
goals.”202
In fact, every federal agency is similarly bound to comply with NEPA,203
which Congress intended to serve as an important constraint on decision
making.204 The statute directs federal agencies to consider the potential
environmental impacts of their proposed actions but does not mandate a
particular outcome; instead, it aims to ensure the integrity of the agency
information. See Denis Campbell, Food Standards Agency Loses Say on Nation’s Diet, THE GUARDIAN
(July 20, 2010), http://www.guardian.co.uk/politics/2010/jul/20/food-standards-agency-nationsdiet?INTCMP=SRCH; Food and Diet, NAT’L HEALTH SERV., http://www.nhs.uk/LiveWell/Goodfood/
Pages/Goodfoodhome.aspx (last visited Nov. 16, 2013).
196. See Alison Chiesa, We Were Told to Eat More Fish . . . but Now There May Not Be Enough
Left, HERALD, SCOTLAND (Feb. 7, 2008), http://www.heraldscotland.com/we-were-told-to-eat-morefish-but-now-there-may-not-be-enough-left-1.874263.
197. See Mission Statement, U.S. DEP’T AGRIC., http://www.usda.gov/wps/portal/usda/usdahome?
navid=MISSION_STATEMENT (last visited Aug. 5, 2013); see also 7 U.S.C. § 2201 (2012).
198. See About Us, U.S. FOREST SERV., http://www.fs.fed.us/aboutus (last updated Jan. 12, 2012).
199. See Natural Resources Conservation Service, U.S. DEP’T AGRIC., http://www.nrcs.usda.gov/
(last visited Sept. 19, 2013).
200. See, e.g., sources cited supra note 5.
201. 7 C.F.R. § 1b.2(a) (2013).
202. Id. (emphasis added).
203. See 42 U.S.C. § 4332 (2006); 40 C.F.R. §§ 1500–1508 (2013).
204. See 42 U.S.C. §§ 4321, 4331–4333.
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decision-making process and to facilitate public participation.205 To achieve
these goals, NEPA requires agencies to identify and consider a project’s direct,
indirect, and cumulative impacts206 and to prepare a detailed environmental
impact statement (EIS) for major federal actions that could significantly affect
“the quality of the human environment.”207 Whether an action might
significantly affect the environment should be analyzed in terms of both
context208 and intensity.209 An agency may first prepare an environmental
assessment (EA) to determine if EIS preparation is required.210 If the EA
results in a finding of no significant impact (FONSI), the agency “must supply
a convincing statement of reasons to explain why a project’s impacts are
insignificant” in order to show that it “took a hard look” at the question.211
Currently, the U.S. Supreme Court views NEPA as a procedural statute,
requiring only that agencies follow the proper environmental review process
before making decisions.212 Yet, in enacting NEPA, Congress sought to
“prevent or eliminate damage to the environment and biosphere[,] stimulate the
health and welfare of man[,] . . . [and] enrich the understanding of the
ecological systems and natural resources important to the Nation.”213
Therefore, it directed that, “to the fullest extent possible . . . the policies,
regulations, and public laws of the United States shall be interpreted and
administered in accordance with” NEPA’s polices,214 which include acting as a
responsible “trustee of the environment for succeeding generations” and
attaining “the widest range of beneficial uses of the environment without
degradation, risk to health or safety, or other undesirable and unintended
consequences.”215
Some types of activities may be categorically excluded from NEPA
analysis because an agency has determined that they do not normally have
“individually or cumulatively” significant effects on the environment.216 This
205. See, e.g., Robertson v. Methow Valley Citizens, 490 U.S. 332, 349 (1989); Neighbors of
Cuddy Mountain v. Alexander, 303 F.3d 1059, 1063 (9th Cir. 2002).
206. See 40 C.F.R. §§ 1501.2(b), 1508.25(c).
207. 42 U.S.C. § 4332(C).
208. Contextual considerations include how the action will affect “society as a whole . . . , the
affected region, the affected interests, and the locality. . . . Both short- and long-term effects are
relevant.” 40 C.F.R. § 1508.27(a).
209. Intensity describes “the severity of impact” and should take into account factors including
“both beneficial and adverse” impacts, “[u]nique characteristics of the geographic area,” the level of
uncertainty/controversy regarding potential effects, the potential for “individually insignificant but
cumulatively significant impacts,” and whether the action is likely to violate federal, state, or local
statutes or regulations “imposed for the protection of the environment.” 40 C.F.R. § 1508.27(b).
210. See 40 C.F.R. § 1508.9; see also Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety
Admin., 538 F.3d 1172, 1185 (9th Cir. 2008).
211. Ctr. for Biological Diversity, 538 F.3d at 1220 (internal quotation marks omitted).
212. See, e.g., Robertson v. Methow Valley Citizens Council, 109 U.S. 332, 350 (1989).
213. 42 U.S.C. § 4321 (2006).
214. Id. § 4332.
215. Id. § 4331(b) (emphasis added).
216. See 40 C.F.R. §§ 1508.4, 1501.4(a)(2), 1507.3(b)(2)(ii) (2013).
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prevents agencies from wasting their time producing an EA and FONSI every
time they need to make a simple administrative decision. In this way, USDA
generically excludes a number of categories of actions, including “[e]ducational
and informational programs and activities,” from NEPA review.217 If defined
as mere guidance, the 2010 Dietary Guidelines would appear to fall within this
broadly defined categorical exclusion; indeed, neither USDA nor HHS engaged
in NEPA review during development of this ultimate source of federal nutrition
policy. However, the propriety of an exclusion is a presumption that is intended
to be overridden if the specific activity could have significant environmental
impacts.218
It is hard to believe Congress intended for U.S. policies with potential
global environmental repercussions to escape NEPA’s requirement for
informed decision making. However, whether the Guidelines technically enjoy
a categorical exclusion should be beside the point. Instead, what matters is that
federal dietary advice given to the American public, while nonbinding, is a
policy vehicle intended to have specific, significant effects on the food choices
of several hundred million people—with significant foreseeable environmental
impacts that must be considered when deciding what advice to give and
precisely how to frame it. “An assessment of the environmental impact of such
guidelines should be considered before the guidelines are issued, as it should
for all clinical and public health recommendations that include dietary
interventions.”219 Quite simply, advocating a significant increase in seafood
consumption without incorporating specific guidance about the relative
environmental impacts of different seafood choices is both irresponsible and
self-defeating.
CONCLUSION
Not only is integrating environmental sustainability concerns with federal
nutrition and public health promotion programs (like the 2010 Dietary
Guidelines) the right thing to do, it is also achievable. We know this because it
is already happening on a limited basis.
Building on the 2010 Dietary Guidelines, the Centers for Disease Control
and Prevention (CDC, another agency within HHS) partnered with the General
Services Administration (GSA) to produce Health and Sustainability
217.
218.
7 C.F.R. § 1b.3(a) (2013).
See id. § 1b.3(c) (“Notwithstanding the exclusions listed in paragraphs (a) of this section and
§ 1b.4, or identified in agency procedures, agency heads may determine that circumstances dictate the
need for preparation of an EA or EIS for a particular action. Agencies shall continue to scrutinize their
activities to determine continued eligibility for categorical exclusion.”); see also 40 C.F.R. § 1508.4
(requiring that agencies “provide for extraordinary circumstances in which a normally excluded action
may have a significant environmental effect”).
219. Jenkins et al., supra note 180, at 636.
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Guidelines for Federal Concessions and Vending Operations.220 This
document “proposes specific food, nutrition, and sustainability guidelines to
complement the GSA procurement guidelines” in order to increase the
availability of healthier, more sustainable food and beverage options, eliminate
synthetic trans fats, decrease sodium in offered foods, and allow informed
choice through informational labeling of menu items.221 In addition to asking
concessions operations to, for example, incentivize reusable beverage container
use and offer at least 25 percent organic, local, or “documented sustainably
grown” food, the Health and Sustainability Guidelines require seafood to be
certified by the Marine Stewardship Council (or similar program) or “identified
as ‘Best Choices’ or ‘Good Alternatives’ on the Monterey Bay Aquarium’s
Seafood Watch list.”222
To demonstrate support for the Health and Sustainability Guidelines, the
CDC website offers endorsements from different organizations, including the
Prevention Institute, which
commends HHS and GSA on the inclusion of sustainability criteria in the
Guidelines. The health impacts of our food system span far beyond the
nutrients contained in food, yet are often overlooked in the development of
nutrition guidelines. . . . By incorporating sustainability criteria into the
Guidelines, HHS is taking an important step towards a more holistic and
comprehensive approach to promoting healthful food. Moving forward, we
would like to see these guidelines used as a model, and a baseline, to be
adopted by other federal agencies, state and local governments, businesses,
and nongovernmental organizations to make their food services healthier
and more sustainable.223
While the Health and Sustainability Guidelines currently only apply to HHS
and GSA worksites,224 the federal government would do well to adopt
something similar on a much grander scale—not just in government office
buildings across the nation, but for all government-subsidized programs.
During fiscal year 2012, millions of Americans participated in federal
food and nutrition programs. For example, on average more than 46 million
220. See Health and Sustainability Guidelines for Federal Concessions and Vending Operations,
CENTERS FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/chronicdisease/resources/
guidelines/food-service-guidelines.htm (last updated Sept. 20, 2013) [hereinafter Health and
Sustainability Guidelines Website]; see also Joel Kimmons et al., Developing and Implementing Health
and Sustainability Guidelines for Institutional Food Service, 3 ADVANCES NUTRITION 337, 340–41
(2012) (describing the Health and Sustainability Guidelines and their implementation).
221. GEN. SERVS. ADMIN. & CTRS. FOR DISEASE CONTROL & PREVENTION, HEALTH AND
SUSTAINABILITY GUIDELINES FOR FEDERAL CONCESSIONS AND VENDING OPERATIONS 1 (2011),
available at http://www.gsa.gov/graphics/pbs/Guidelines_for_Federal_Concessions_and_Vending_
Operations.pdf.
222. Id. at 12, 13. The authors of the Health and Sustainability Guidelines were careful to insert a
footnote explaining that “[e]xamples of ‘Best Choices’ do not imply government endorsement of these
standards. Only endorsements made directly by governing agencies (e.g., USDA, FDA) should be
considered government endorsements.” Id. at 13.
223. See Health and Sustainability Guidelines Website, supra note 220.
224. See id.
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people per month received Supplemental Nutrition Assistance (SNAP,
otherwise known as food stamps),225 the National School Lunch Program
provided more than 31 million children with lunch each day,226 and almost 9
million women, infants, and children received help each month through the
Special Supplemental Nutrition Program for Women, Infants, and Children
(WIC).227 All of these programs are intended to follow the Dietary
Guidelines.228
What if every fish stick229 in a federally subsidized school lunch and
every can of fish in a WIC food package230 contained only sustainable fish?
Such a change could start to make a real difference. Now factor in the potential
persuasive power of Dietary Guidelines that include environmental
considerations over Americans’ food choices.
Sustainable food policy—whether it concerns seafood, livestock, or
agricultural crops—is sound food policy. Sustainably managed resources are
more stable and have higher yields over the medium- and long-term.231
Therefore, there is no real tension between utilizing diverse USDA science
expertise to incorporate sustainability information in the Dietary Guidelines
and the interests of the nation, the fishing and aquaculture industries, and
seafood consumers. Not doing so may in fact violate NEPA.
We cannot afford to continue to willfully ignore the unintended
consequences of federal dietary advice. For our health, and the health of future
generations, we must recognize and respond to the fact that “the act of eating is
one of the most powerful ways we affect the environment.”232
225. See Annual Summary of Food and Nutrition Service Programs, FY 2008–2012, FOOD &
NUTRITION SERV., U.S. DEP’T AGRIC. (2013), http://www.fns.usda.gov/pd/annual.htm.
226. See id.
227. See id.
228. See supra text accompanying note 168.
229. Fish sticks are usually made from whitefish, including cod, pollock, and haddock. See, e.g.,
Fish Finger, WIKIPEDIA, http://en.wikipedia.org/wiki/Fish_finger (last modified Aug. 9, 2013).
However, cod and pollock vary from “Best Choice” to “Avoid” based on the differential sustainability
of different fisheries and fishing techniques. See supra Table 1.
230. WIC food packages may contain canned light tuna, salmon, sardines, or mackerel. See
Canned Fish, WIC Food Packages—Regulatory Requirements for WIC-Eligible Foods, FOOD &
NUTRITION SERV.,
U.S. DEP’T AGRIC.,
http://www.fns.usda.gov/wic/benefitsandservices/
foodpkgregs.HTM#CANNED_FISH_ (last updated Sept. 3, 2013).
231. See, e.g., Toward a Healthy, Sustainable Food System, AM. PUB. HEALTH ASS’N (Nov. 6,
2007), http://www.apha.org/advocacy/policy/policysearch/default.htm?id=1361; Miguel A. Altieri,
Modern Agriculture: Ecological Impacts and the Possibilities for Truly Sustainable Farming,
AGROECOLOGY ACTION, http://nature.berkeley.edu/~miguel-alt/modern_agriculture.html (last updated
July 30, 2000) (“Increasingly, researchers are showing that it is possible to provide a balanced
environment, sustained yields, biologically mediated soil fertility and natural pest regulation through the
design of diversified agroecosystems and the use of low-input technologies.”).
232. Jennifer Bogo, When Conservation Meets Cuisine, AUDUBON HOME, http://web4.audubon.
org/bird/at_home/chefs_web.html (last visited Nov. 16, 2013).
We welcome responses to this Comment. If you are interested in submitting a response for our
online companion journal, Ecology Law Currents, please contact [email protected]
Responses to articles may be viewed at our website, http://www.boalt.org/elq.
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