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A Whale of a Problem: The US Navy and Environmentalism

Researchers perform autopsy on a stranded beaked whale.

During the 1990’s a team of researchers operating in the Mediterranean Sea discovered a mass stranding of beaked whales, a behavior whereby the whales purposefully beach themselves, usually dying in the process. Mass strandings are extremely rare, especially considering allof the stranded whales were declared perfectly healthy at the time of the event. Concurrent to the mass stranding, the North Atlantic Treaty Organization (NATO) had been conducting Navy training exercises in the area using sonar technology. A direct cause-and-effect relationship between the events was discovered much later. It became clear that the naval sonar technology harmed the marine mammals and was directly responsible for their death. Regardless, the United States Navy continues using this same technology with no oversight and no response to the resulting grave environmental damage. For any other federal agency, such a breach of environmental laws would have been forcibly terminated. However, the United States Navy was since declared legally exempted from adhering to environmental — including endangered species —protection laws in a wide array of situations.

The whale stranding cases ignited an unprecedented conflict over the federal attitude towards of environmental laws.  Several legal courts, environmental agencies, the navy, and even the White House were ultimately embroiled in the dispute. The final verdict finally ruled in favor of the navy, citing the overarching importance of national security. This dismissal of environmental concerns created a strong precedent for all federal policies and their relation with the environment.

The United States Navy uses sonar technology – the emission of sound waves in water to detect large objects – as a major marine defense strategy. Beginning during the Cold War as a response to the Soviet Union’s submarine K-19 with ballistic missiles, sonar has developed extensively and is viewed as an essential naval defense mechanism. Undoubtedly, sonar systems are essential elements in protecting the United States from naval attack. Man-made sonar itself does not harm marine mammals, however, the frequency at which the sonar is emitted can be extremely harmful. More recent studies conducted in England have found that sonar negatively affects beaked whales and blue whales hunting patterns, potentially introducing a whole new set of variables and challenges to whale survival. The Meditteranean research team recognized a potential relationship but did not draw correlation or causation until additional mass whale strandings occurred at the same time period and same location of sonar usage in the Canary Islands (1985,1986,1989,2002,2004), Madeira (2000), Spain (2006), US Virgin Islands (1998,1999), and Greece (1996). Furthermore, researchers have proposed that many more beaked whale deaths happen in the open ocean without human knowledge. After these incidents, NATO and the US Navy acknowledged that sonar caused these mass strandings, and yet, the US Navy did not change its behavior.

In result of these findings, the Natural Resources Defense Council filed a civil suit against the United State Navy in the District Court of California in 2007 for violating the Coastal Zone Management Act, National Environmental Policy Act, and the Endangered Species Act. The Endangered Species Act (ESA) protects both endangered and protected species but allows for their lawful harm if a specific “lawful purpose” is to be achieved and the Secretary of Commerce or the Secretary of the Interior is consulted. The National Environmental Policy Act (NEPA) forces federal agencies to consider the environmental impacts of their actions and potential alternatives that would prevent those negative impacts. The Coastal Zone Management Act allows states to control commercial activities involving coastline through a formalized “coastal management plan”. When viewed in combination, these three laws state that California had a legal code surrounding activities in coastal areas that forced the Navy to consider more environmentally friendly alternatives that protected endangered and threatened marine mammals.

The District Court found that the Navy had violated the NEPA by knowingly causing “170,000 incidents of harassment, 466 permanent injuries to [endangered] whales, and 28 temporary threshold shift exposures to endangered … whales” and ignoring opportunities for less harmful activities. The District Court also found the Navy in violation of the CZMA as the Navy’s behavior regarding California’s “coastal management plan” was “arbitrary and capricious”. The court issued an injunction on Navy sonar operations unless the Navy met several mitigation requirements under the NEPA. The mitigation requirements focused on increased observation of water conditions and marine mammal presence before the sonar equipment was used.

Although the verdict only demanded making additional precautions before testing sonar technology, it launched an extended fight between the judicial and executive branches. President George W. Bush exempted the Navy from the violation of the CZMA for reasons of national security and defense. The Navy appealed the injunction to the Ninth Circuit Court of Appeals who ruled that the Navy was still violating the NEPA. The Court of Appeals changed the details of the mitigation requirements but extended the injunction until those requirements were met. The Navy then appealed to the United States Supreme Court who decided the case based on the “balance of public interests”. The Supreme Court ruled that the details of the case were irrelevant because public interest was best served by a strong Navy. The majority decision wrote that “For the plaintiffs, the most serious possible injury would be harm to an unknown number of the marine mammals that they study and observe. In contrast, forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet”. The decision set a precedent allowing the United States military to conduct any behavior necessary for effective military operations regardless of the environmental harms.

A key element in the case which seems to have been glossed over by the Supreme Court is that the sonar technology was not being used in a time of warfare or during instances of military operations. The US Navy’s sonar technology – as referenced by the lawsuit – was used for training reasons. Further, the mitigation requirements set by the District Court and the Court of Appeals only dictated that the Navy scan the area using various technology to ensure that no marine mammals were present. Clearly, training exercises would not have been disrupted by the environmental mitigation restrictions. Naval sonar training can be conducted without harming marine mammals and yet the legal precedent dictates that because adjusting training operations to environmental standards would be inconvenient, federal agencies are not required to comply. The verdict regardless of these facts is discouraging both for the future of environmental protection in the US, but especially for those who hoped that popular awareness would lead to more strident environmental protection at the federal level and especially in the White House.

Military prowess is essential for national security, but prioritizing it to the point of exempting agencies from following important legislation is a step too far. As several court decisions reiterated before the case’s final ruling, haphazardly endangering the environment through preventable means is a clear violation of established laws, endangering most of all the nation’s willingness to solve rising  environmental concerns.

About the Author

A member of the Class of 2017, Brenna is concentrating in Public Policy and Economics.