Whales v. Navy Sonar: "...[I]t's not just you turn sonar on and instantly all the whales head for the beach..."

Background
For several years now, there has been an on-going controversy between certain environmental organizations, particularly the Natural Resources Defense Council (NRDC) and the United States Navy over the use of sonar in certain environments. In the last couple of years, the NDRC has brought lawsuits against the Navy which have resulted in lower level federal courts enjoining the Navy from using sonar under certain specified circumstances and at certain levels, felt by the courts and by NRDC to pose a threat to various whales and marine mammals. The Navy has adopted many preemptive measures to mitigate potential damage to whales and other marine mammals but asserts that adopting the full range of protective measures proposed by the NRDC would, for all practical purpose, effectively end its ability to conduct training necessary for it to prepare sailors to detect and combat quiet submarines in littoral waters.

A collection of various orders and an opinion from the Ninth Circuit can be found here. The underlying substance of the case is well set in a 2007 order lifting a complete prohibition against the use of sonar during training in the Southern California Fleet Operating Area:

The Navy and environmental advocacy organizations have battled for years about whether Navy training using sonar is too harmful to the environment, particularly whales. The Navy uses something called medium frequency active sonar, which basically bounces a loud noise off the hulls of extremely quiet submarines to detect their presence. The loud noise may be quite harmful to whales and other marine mammals. In a previous round of this litigation, the district court had approved a settlement that allowed Navy sonar training to
proceed, but required mitigation “measures.” The measures consisted of such
precautions as requiring some sailors to be on deck looking for whales, and
reducing the decibel level when whales were present, weather prevented seeing
whether any whales were around, or “surface ducting” would let the noise carry
more.(footnotes omitted)

The matter has gone back and forth to court, with the federal government attempting to invoke various other avenues to limit interference in Navy training. The current order appealed from does not put a complete halt to sonar training, neither does it give the Navy free rein in its training exercises. The basis for injunction granted by district court was set out by the Ninth Circuit as follows:

In granting NRDC’s motion for a preliminary injunction, the district court found that NRDC had demonstrated probable success on the merits of its claim that the Navy violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., by failing to prepare an Environmental Impact Statement (“EIS”). The district court also found that NRDC had demonstrated probable success on the merits of its claim that the Navy violated the Coastal Zone Management Act (“CZMA”), 16 U.S.C. § 1451 et seq., by submitting a consistency determination to the California Coastal Commission (“CCC”) that did not take into account the planned use of MFA sonar and by failing to adopt the mitigation measures the CCC determined were necessary for the SOCAL exercises to be consistent with the
California Coastal Management Program (“CCMP”).

On January 15, 2008, the Council on Environmental Quality (“CEQ”)purported to approve “alternative arrangements,” pursuant to 40 C.F.R. § 1506.11,
that would permit the Navy to continue its exercise without first completing an
EIS. On the same day, President George W. Bush, pursuant to 16 U.S.C. §
1456(c)(1)(B), exempted from the requirements of the CZMA the Navy’s use of
MFA sonar in the SOCAL exercises.

On February 4, 2008, the district court upheld its injunction on the basis of
plaintiffs’ NEPA claim, concluding CEQ’s action was invalid and therefore not
entitled to deference. The district court also expressed concerns about the
constitutionality of the President’s CZMA exemption on the ground that it
appeared to amount to an executive revision of a judicial decision and thus violated
the principle, recognized in Hayburn’s Case, 2 U.S. (2 Dall.) 408 (1792), that
Congress cannot vest review of the decisions of Article III courts in officials of the officials of the Executive Branch. However, the court declined to decide the constitutionality of the CZMA exemption because it concluded the preliminary injunction was firmly supported on NEPA grounds.3 The district court also found that plaintiffs had demonstrated a possibility of irreparable harm and that the balance of hardships tipped in plaintiffs’ favor. Natural Res. Def. Council v. Winter, --- F.Supp 2d ----, 2008 WL 314192 (C.D. Cal. Feb. 4, 2008) (“Feb. 4, 2008 Dist. Ct. Order”).

The Ninth Circuit, in the order appealed by the Navy, affirmed the lower court and that affirmation is what is on now on appeal to the Supreme Court.

The Navy's need for certain types of training was well presented to the Ninth Circuit: (from pages 11-13 of the 2/29/08 opinion)

According to the Navy, the ability to execute anti-submarine warfare (“ASW”) is critical to a Commander’s certification of a strike group.

Improving ASW is the Pacific Fleet’s top “war-fighting” priority because of the
proliferation of extremely quiet diesel electric submarines throughout the world.

In turn, an important part of ASW is the use of active sonar, a technology
which the Navy deems absolutely necessary to detect today’s extremely quiet
submarines. The type of active sonar, the use of which NRDC challenges, is midfrequency active sonar; other categories of active sonar are low-frequency active
sonar and high-frequency active sonar.

Active sonar involves a vessel or other sonar source emitting a loud noise
underwater and then listening for whether the noise comes back to the source,
indicating that the noise may have bounced off the hull of a previously undetected
submarine. According to the Navy, active sonar has two important advantages
over passive sonar, which merely involves listening for noise made by submarines
themselves: active sonar gives both the bearing and the distance of the target
submarine, while passive sonar gives only the bearing; and active sonar allows the
Navy to target submarines that emit sound at levels below those of the surrounding
marine environment. Accordingly, the Navy has concluded that in
certain environments, including shallow coastal waters where ambient noise levels
are high, MFA sonar allows better detection of quiet submarines than passive
sonar.

According to the Navy, personnel using MFA sonar must train with it
regularly, under realistic conditions, and in a variety of situations.
The Navy therefore trains with MFA sonar in the ASW exercises that constitute an
important component of the SOCAL exercises. (notes and references omitted)

The court also sets out the allegations of potential harm to marine mammals in the SOCAL Op Areas. No one who has lived on the California coast will be surprised to learn that the Op Areas are teeming with marine mammals. It seems that of particular interest to both the district court and the appellate court was the effect of MFA sonar on "beaked" whales which seem to be particularly sensitive to MFA sonar:

As the record demonstrates, substantial evidence suggests that beaked
whales are particularly vulnerable to MFA sonar. While it is not settled what
causes this vulnerability, it is clear that use of MFA sonar may lead to the
stranding of beaked whales. A 2004 Navy-sponsored study concluded that “the
evidence of sonar causation is . . . completely convincing and that therefore there is a serious issue of how best to avoid/minimize future beaching events.” Likewise,
the Standing Working Group on Environmental Concerns of the International
Whaling Commission’s Scientific Committee concluded in 2004 that “[t]he weight
of accumulated evidence now associates mid-frequency, military sonar with
atypical beaked whale mass strandings,” and found that “[t]his evidence is very
convincing and appears overwhelming.”

Thus battle lines are drawn. The delicate balance between national security and environmental protection is in the hands of the highest court in the land.

Blogger Rountable with Rear Admiral Rice

On June 24, 2008, Rear Admiral Lawrence Rice engaged in a "blogger roundtable" with me, Grim from Blackfive, Colin Clark of DOD Buzz, and by submitted questions, Steeljaw Scribe. The audio of the roundtable is
available by clicking here. A transcript is available here.

Grim started off with an interesting question that I think was meant to invoke issues of "lawfare" - whether the environmental movement worldwide was using lawsuits to restrain U.S. (and allied) military operations. Admiral Rice, probably wisely, declined the opportunity to speculate on the motivations of such organizations.

My questions were (however rambling they might have been) about the differences in the approach the Navy was taking to mitigate environmental impact and still conduct necessary training with the approach the NRDC is pursuing. The response was that they are not compatible.

The Navy attempting to find work arounds and is also funding substantial research into marine mammals. (For example here). RADM Rice stated that some research was being done to determine, essentially, whether the sonar may be sending a "wrong message" to the beaked whales, causing them to panic in some way.

He noted that not every use of sonar causes whales to throw themselves onto the beach- that research has found that only in certain circumstances-

"So it's not just you turn sonar on and instantly all the whales head for the beach, there have to be very specific circumstances present."

I like the quote, because it does take away the simple "Sonar = Evil" argument I have seen in some less enlightened environmental comments.

Another matter that may not have occurred to some whale lovers is that the Navy is actually leading the way in getting scientists access to the heretofore scarcely known beaked whales, which seem to spend very little time near the surface but Navy hydrophones are helping to locate them for researchers:

The problem is because of their diving habits, we don't see them very often. And when we do our exercises -- excuse me -- when we do our research on beaked whales we have to find them with hydrophones, then send of boat out to where the hydrophone is and wait for them to surface. They dive down, as I'm sure you may have seen literature, they dive down in excess of 1,000 meters, more than a kilometer deep and they're down there for 45 minutes holding their breath. It's absolutely amazing. And then they come up to the surface for a quick breath of air and then they're back down again. So we don't see them very much; not very much is known about them so initially we thought there weren't very many of them. But when we started looking at our hydrophones on the different ranges, we found out that they are everywhere...

And that research may be the key to finding a long-term solution to "whales versus U.S. Navy." As the admiral said, we await the decision of the Supreme Court to sort out a short-term balance of national security and environmental concerns.

Now, I wonder if NRDC has an answer to ultra-quiet submarines in the littorals?

More on beaked whales here and here.