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PRI's Environmental News Magazine

A Whale of a Case

Air Date: Week of October 3, 2008

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Humpback whales can be heard across oceans. (Photo: Ocean Alliance/Iain Kerr)

Mid-frequency sonar used by the Navy has been linked to mass beachings of marine mammals, including whales and dolphins. This year, a federal court ruled that environmental precautions must be taken before using the sonar in California. The Navy says that protecting marine animals is coming at the expense of national security and appealed the ruling. The U.S. Supreme Court will soon take up the issue. Host Bruce Gellerman talks with Joel Reynolds, senior attorney and director of the Marine Mammal Protection Project at the Natural Resources Defense Council, about the issue.

Transcript

[MUSIC: Tom Verlaine: Old Car from Warm And Cool (Thrill Jockey Records 2005)]

GELLERMAN: It’s Living on Earth, I’m Bruce Gellerman.

[HIGH PITCHED SOUND OF SONAR]

GELLERMAN: Hear it?

[SONAR]

GELLERMAN: This is the sound of Medium Frequency Active Sonar.

[SONAR]

GELLERMAN: The U.S. Navy uses this sonar to detect enemy submarines, running silent and deep at sea. This sound is also at the center of a scientific controversy and constitutional struggle that the U.S. Supreme Court confronts as its new term gets underway. Lower courts have ruled against the Navy, which trains sailors in the use of active sonar off the coast of Southern California. The courts say the Navy must take preventative measures to protect whales and other marine mammals from the sound. The Navy says, No, it doesn’t - national security comes first - and the president agrees. Now it’s up to the Supreme Court to decide.

Joining me is Joel Reynolds. He’s senior attorney and director of the Marine Mammal Protection Project at the Natural Resources Defense Council. Mr. Reynolds, let’s take another listen to the Medium Frequency Active Sonar.

[SONAR]

GELLERMAN: You know, Mr. Reynolds, it sounds like a maniacal dentist. It sounds awful.

REYNOLDS: To me it sounds like fingernails on a black board at a very high level. And understand that the sound that you’re hearing is an infinitesimal fraction of the intensity of the actual use of this sonar.

GELLERMAN: Well how does it sound to whales?

REYNOLDS: It’s very hard to say. Whales have a very different sense of sound than human beings do. But what we know is, what we’ve observed in terms of their reaction. They avoid the sound immediately when exposed to it. It has caused in repeated instances, whales to strand and die on the beaches with blood coming out of their eyes and ears and their mouth as the result of internal hemorrhaging. It causes damage to the hearing mechanism. The fact of the matter is that there is an indisputable scientific record of carnage in the wake of the use of this kind of sonar around the world. And the notion somehow that the waters of southern California will be immune from that harm is – is not only ridiculous, but there’s no scientific basis for it whatsoever.

GELLERMAN: So what does the navy’s environmental impact statement - which I guess they’re required to file in a case like this – say about the effects of mid-frequency active sonar on marine mammals?

REYNOLDS: First of all, the Navy didn’t prepare an environmental impact statement in this case, and that’s a violation of federal law. Second of all, they did prepare something called an environmental assessment, and in that document they estimated that over the two-year period of fourteen exercises off the southern California coast they would take an estimated 170,000 marine mammals, including taking some five endangered species of whales that reside off our coast.

GELLERMAN: Now, what is a take?

REYNOLDS: A take is a legal term under the Marine Mammal Protection Act, which encompasses a range of harm from significant disturbance to injury to death.

GELLERMAN: The navy did not file an environmental impact statement?

REYNOLDS: No. And that’s at the heart of the case. They – on the one hand, they claim no harm. On the other hand, their own numbers suggest what the district court called a near certainty of environmental harm. And that’s the box in which the Navy finds itself.

GELLERMAN: So the lower federal courts had ruled in favor of NRDC, basically you, saying there was potential harm, that the navy had to do some mitigation. Then the navy said “No we don’t” and the White House said “You’re right – you don’t.”

REYNOLDS: That’s right. Their position is that for reasons of national security, the laws do not apply to them. That is the principle that is at the heart of this case as it now stands before the U.S. Supreme Court. Our position, and the law going back hundreds of years in this country, is that all of us are subject to the law, so when a court issues an injunction, we have to comply with it. That’s at the heart of our system of government. But the White House has turned that on its head, at the Navy’s behest in this case, and they have essentially concluded that the Navy is not bound by those laws, it’s not bound by the injunction, and it’s asking the Supreme Court to vindicate that point of view.

GELLERMAN: Do you appreciate the Navy’s concern for the potential negative effect on national security? Should the Supreme Court, you know, agree with you?

REYNOLDS: There’s no implication for national security. I mean, that is a myth. In fact, that’s the point of view that the Navy has tried to persuade first the district court and then the Court of Appeals to be correct. But in each case, the courts, after examining all the evidence presented, including evidence of the Navy’s own past mitigation practices, the courts uniformly concluded that there is no significant intrusion on the Navy’s readiness training if they introduce common sense measures to reduce risk.


Humpback whales can be heard across oceans.(Photo: Ocean Alliance/Iain Kerr)

The problem for the Navy, I think fundamentally, is that they’re concerned that if they’re required in this case to utilize safeguards in their training, they will be required in some future case around the world to impose the same kinds of safeguards. But every independent forum that has been presented with this question about whether these common sense measures actually will intrude upon our national security, have concluded that they will not.

GELLERMAN: Well Mr. Reynolds, thanks a lot. I appreciate your time.

REYNOLDS: My pleasure. Thanks for having me.

GELLERMAN: Joel Reynolds is senior attorney and director of the Marine Mammal Protection Project at the Natural Resources Defense Council.

We asked the U.S. Navy to talk to us. Instead a spokesperson had this statement:
“Submarine warfare is the number one threat facing the Navy today and mid-frequency Active Sonar is the only way to detect and track modern diesel electric subs. The Navy has been using sonar off the coast of Southern California for the past 40 years and has not had a single reported death of a marine mammal linked to sonar.”

 

Links

Read the U.S. Navy's environmental impact statement

Natural Resources Defense Council on Whales and Sonar

 

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