Whales, Navy clash at high court

The justices will consider whether the Navy must heed restrictions on use of sonar off California.

Call this story “save the whales” meets “The Hunt for Red October.”

On Wednesday, the US Supreme Court wades into a dispute between the US Navy and a group of conservationists over the use of mid-frequency active (MFA) sonar during large-scale naval training exercises off the southern coast of California.

MFA sonars send pulses of loud noise through the water with such intensity that it can disrupt or injure marine mammals nearby. In some instances, scientists say, it can trigger fatal mass strandings.

The case doesn’t simply pit the environment against national security. It is also a major clash over power – the power of judges to order environmental compliance versus the power of the president and the executive branch to defend the nation. But at its most basic, the case is about whales and warfare.

California’s coastal waters are among the richest and most biologically diverse in the world. The region features 37 species of marine mammals, including endangered blue whales, pygmy sperm whales, beaked whales, and bottle­nose dolphins.

The offshore area is also an important training ground for the US Navy. It is the only place on the West Coast offering all the land, air, and seafloor features needed to train US air, sea, and undersea forces simultaneously in an integrated operation.

In March 2007, lawyers with the Natural Resources Defense Council (NRDC) and five other environmental groups filed a lawsuit seeking to force the Navy to be more caring of the environment when using MFA sonar during 11 planned training exercises off the southern California coast.

US District Judge Florence-Marie Cooper issued a preliminary injunction and ordered the Navy to halt its training exercises unless it adopted a court-ordered mitigation plan to reduce the potential harmful effects of the sonars. The plan called for shutting down sonars whenever marine mammals were detected within 1.25 miles.

The chief of naval operations objected, saying the court’s plan would “cripple” the Navy’s ability to train personnel to combat-ready status.

“Anti-submarine warfare is a high-stakes cat-and-mouse game that may span days and require large teams of personnel working in shifts around the clock,” according to the government’s brief. “Terminating or reducing sonar transmissions while attempting to locate and track a submarine, even for a relatively brief period, may allow the submarine to go undetected or escape.”

President Bush exercised his authority as commander in chief to exempt the Navy’s training from certain environmental requirements, declaring that the effort was “essential to national security.”

At the same time, the White House Council on Environmental Quality issued an emergency exemption for the Navy.

On appeal, a panel of the Ninth US Circuit Court of Appeals upheld the injunction but modified the mitigation requirements, allowing the Navy to reduce sonar power rather than turn it off entirely when a marine mammal was spotted within 1.25 miles of a sonar source. In addition, a court-ordered 75 percent power-down requirement during certain thermal conditions would apply only when marine mammals were detected in the area.

In its appeal to the US Supreme Court, the Navy and the Bush administration are urging the justices to allow the Navy training exercises to proceed without court-imposed conditions.

The Ninth Circuit decision “conflicts with the collective judgment of Congress, the President, the nation’s top naval officers and the federal agency charged by Congress with protecting marine mammals,” writes Solicitor General Gregory Garre in the government’s brief.

Lawyers with the NRDC praise the federal judge’s actions and the Ninth Circuit’s support of those actions. “The same or similar measures as the judge required here have been utilized elsewhere by the Navy, in particular by the Atlantic Fleet,” says NRDC lawyer Joel Reynolds. “But the Navy, for whatever reason, has chosen not to adopt measures like these off southern California.”

The sides disagree on the scope of the potential environmental problem. The Navy predicted 170,000 instances of a marine mammal being harassed, injured, or killed through sonar contact, including 548 permanent injuries for beaked whales, according to the NRDC’s brief.

But the government now disputes these estimates. “There have been no observed or documented incidents of injury or death to marine mammals resulting from MFA-sonar exposure [in this area] in the past 40 years,” Mr. Garre says.

Mr. Reynolds says such claims are meaningless. “The Navy simply wasn’t looking,” he says. “Strandings have occurred, but nobody has been able to identify a source.”

Scientists are beginning to piece together correlations between the often top-secret use of military sonars and mass whale strandings, says Chris Parsons, a marine biology professor at George Mason University and a delegate to the International Whaling Commission.

“Now people are starting to look into it and are seeing more of these strandings related to military activities,” Professor Parsons says. Strandings have been observed near military training in the US Virgin Islands, Greece, Japan, Spain, and the Canary Islands, as well as off Hawaii, Washington State, and Alaska, among other areas, according to the NRDC.

Reynolds says the Navy should find a different location to train. “We are not questioning their judgment that mid-frequency sonar training is necessary,” he says. “Our concern is simply that when they do it, they use common-sense safeguards to reduce the risk.”