Rob McKenna: Orca lawsuit has a ‘pretty good case’

Orcas struggling in Puget Sound waters cannot wait much longer for the government to get its act together. They need protection now. So someone is suing over it.

“I guess I’m not surprised the fishery service is being slow here,” former Washington State Attorney General Rob McKenna told KIRO Radio’s Dave Ross. “There’s slow and there’s unlawfully slow and that’s what this lawsuit is all about.”

RELATED: Lawsuit filed over orca protection

The Center of Biological Diversity is suing the Secretary of Commerce and the National Marine Fisheries Service. The center argues that the protected habitat for the orca common in Puget Sound should be greatly expanded.

The proposed habitat for the southern resident orca — included in the lawsuit — would extend the protected area from the current Puget Sound / Strait of Juan de Fuca area, down the West Coast to San Francisco. Plaintiffs in the lawsuit argue that the federal government was already supposed to have updated the habitat boundaries by 2017.

“The issue here is whether regulation should be expanded to further protect these animals,” McKenna said. “This lawsuit against the fishery service claims they have waited too long. They failed to issue proposed and final rules and they need to do so under the law. It looks like, to me, that the plaintiffs have a pretty good case. Even if fisheries doesn’t issue a revised critical habitat as large as this plaintiff wants.”

But the notion behind the lawsuit brings up an interesting question: Can one area of the country be held responsible for a problem in another area of the country? In this case, the Puget Sound region wants California to fall in line and help protect orca habitat. Dave brings up another issue entirely. Could a coal burning state be held accountable for the poor air quality in another?

“Yes, it could,” McKenna said. “That is a possibility. The thing with pollution is that it travels, and sources of pollution can be held accountable for damage in other parts of the country. That can be the case, but also this is why we have regulations. This is why we have a Clean Air Act.”

The orca lawsuit doesn’t entirely have to do with pollution. Rather, it seeks to extend protected boundaries. That will likely have affects on military operations, marine traffic, oil and gas leasing (offshore drilling), coastal construction, or septic tanks.

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