NEPA, National Security, and Ocean Noise: The Past, Present, and Future of Regulating the Impact of Navy Sonar on Marine Mammals

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Notes

Stephen Dycus, NEPA Secrets, 2 N.Y.U. Envtl. L.J. 300 (1993) (quoting Defense Secretary Dick Cheney, Address to Defense and Environmental Initiative Forum (Sept. 3, 1990)).

For a discussion of the tension between environmental protection and military interests in various contexts, see generally Hope Babcock, National Security and Environmental Laws: A Clear and Present Danger?, 25 Va. Envtl. L.J. 105 (2007); Marcilynn A. Burke, Green Peace? Protecting Our National Treasures While Providing for Our National Security, 32 Wm. & Mary Envtl. L. & Pol’y Rev. 803 (2008); Jason C. Wells, National Security and the Endangered Species Act: A Fresh Look at the Exemption Process and the Evolution of Army Environmental Policy, 31 Wm. & Mary Envtl. L. & Pol’y Rev. 255 (2006); Comment, Exempting Department of Defense From Federal Hazardous Waste Laws: Resource Contamination as “Range Preservation,” 32 Ecology L.Q. 647 (2005).

Julie G. Yap, Just Keep Swimming: Guiding Environmental Stewardship Out of the Riptide of National Security, 73 Fordham L. Rev. 1289, 1291 (2004).

Id.

For a discussion of the impacts of Navy sonar on marine mammals, see infra Part I.B.

See generally Stephen Dycus, Osama's Submarine: National Security and Environmental Protection after 9/11, 30 Wm. & Mary Envtl. L. & Pol’y Rev. 1 (2008).

Humane Society of the United States, Sonar: Acoustic Harassment, available at http://www.hsus.org/marine_mammals/what_are_the_issues/noise_pollution_and_acoustic_harassment/sonar_acoustic_harassment.htmlhttp://www.hsus.org/marine_mammals/what_are_the_issues/noise_pollution_and_acoustic_harassment/sonar_acoustic_harassment.html (last visited June 25, 2010) [hereinafter Sonar: Acoustic Harassment].

Id.

See Cat Lazaroff, U.S. Navy Admits Its Sonar Killed Whales, Low Frequency Active Sonar.net, http://www.lfas.net/usnavyadmitsitssonarkilledwhales.htm

See Sonar: Acoustic Harassment, supra note 8.

129 S. Ct. 365 (2008). For a discussion of the Supreme Court's decision and its implication, see infra Part 3.2.

See 42 U.S.C. §§ 4321–4370f (2006).

Robin Kundis Craig, Beyond Winter v. NRDC: A Decade of Litigation the Navy's Active Sonar Around the Environmental Exemptions, 32 B.C. Envtl. Aff L. Rev. 353, 353–54 (2009) [hereinafter Craig].

Paul C. Kiamos, National Security and Wildlife Protection: Maintaining an Effective Balance, 8 Envtl. L. 457, 481–482 (2002).

The Marine Mammal Protection Act and Surveillance Towed Array Sensor System Low Frequency Active Sonar: Hearings before the Subcomm. on Fisheries, Conservation, Wildlife and Oceans of the House Comm. on Resources, 107th Cong. 3–4 (2001) [hereinafter House Comm. on Resources Hearings] (statement of Vice Admiral Dennis McGinn).

“Encroachment Issues” Having a Potentially Adverse Impact on Military Readiness: Hearing Before the Subcomm. on Readiness and Management Support of the Senate Armed Services Comm., 107th Cong. 11 (2001) [hereinafter Senate Armed Services Comm. Hearing] (statement of Vice Admiral James F. Amerault, Deputy Chief of Naval Operations, Fleet Readiness and Logistics). Congressional testimony reveals that “potential adversaries, including China, North Korea, and Iran, have developed ultra-quiet diesel-electric sub[marines].” Robert McClure, Tests on Marine Mammals to Look for Sonar Link to Injuries, Seattle Post-Intelligencer, July 12, 2003, at A1.

Id. Despite the end of the Cold War, the submarine threat remains real and in some ways has become more challenging. Of the approximately 500 non-U.S. submarines in the world, 224 are operated by non-allied nations. House Comm. on Resources Hearings, supra note 16, at 4.

Id. at 4–5.

Id. at 2.

CC Vassar, NRDC v. Winter: Is NEPA Impeding National Security Interests?, 24 J. Land Use & Envtl. L. 279, 280 (2009) [hereinafter Vassar].

Id.

Gidget Fuentes, Sonar Ruling Lifts Key Training Restrictions, Marine Corps Times, Nov. 16, 2008, http://www.marinecorpstimes.com/news/2008/11/navy_ sonar_111408w/

Id.

Id.

Vassar, supra note 21 at 286.

A “ping” is a complete sequence of sound transmission. See Taking and Importing Marine Mammals: Taking Marine Mammals Incidental to Navy Operations of Surveillance Towed Array Sensor System Low Frequency Active Sonar, 67 Fed. Reg. 46712, 46712 (July 16, 2002) (to be codified at 50 C.F.R. pt. 216) [hereinafter Final Rule].

Vassar, supra note 21, at 286.

United States Navy, Ocean Stewardship: Understanding Sonar, http://www.navy.mil/oceans/sonar.html.

Id.

Id.

Id.

Final Rule, supra note 27, at 46712; see also Letter from Joel Reynolds & Michael Jasny, Senior Attorney and Project Associate (respectively), Natural Resources Defense Council, to Donna Wieting, Chief, Marine Mammal Conservation Division of the National Marine Fisheries Service (May 31, 2001), available at http://www.nrdc.org/wildlife/marine/cjrmj0501.asp

See Taffy Lee Williams, High Intensity Military Sonar: Ocean Patrol or Killing Machine?, N.Y. Whale & Dolphin Action League, 2002, available at http://www.ny4whales.org/sonar.htmlProfile (“The [Concorde] SuperSonic [jet] at take off is 150 db.”) Remarkably, LFA sonar has a sound pressure level of approximately 140 dB when it is more than 400 miles from the vessel. NRDC v. Evans, 364 F. Supp. 2d 1083, 1096 (N.D. Cal. 2003).

Joel R. Reynolds, Submarines, Sonar, and the Death of Whales: Enforcing the Delicate Balance of Environmental Compliance and National Security in Military Training, 32 Wm. & Mary Envtl. L. & Pol’y Rev. 759, 760 (2008) [hereinafter Reynolds].

Marine Mammal Commission Report to Congress, Marine Mammals and Noise: A Sound Approach to Research and Management i (2007), http://mmc.gov/reports/workshop/pdf/fullsoundreport.pdf

Lethal Sounds: The Use of Military Sonar Poses a Deadly Threat to Whales and Other Marine Mammals, available at http://www.nrdc.org/wildlife/marine/sonar.asp

Marine Mammal Commission Report to Congress, Annual Report to Congress 147 (2008), http://mmc.gov/reports/annual/pdf/2008annualreport.pdf [hereinafter Marine Mammal Annual Report].

Id.

See Reynolds, supra note 35 at 763–68.

Id. at 762. “A range of experts, from the International Whaling Commission's (“IWC”) Scientific Committee to the U.S. Navy's own commissioned scientists, have agreed that the evidence linking mass strandings to mid-frequency sonar is “convincing” and “overwhelming.” Id.

Id.

Id.

See Letter from Joel Reynolds, Senior Attorney and Dir., Marine Mammal Protection Project, NRDC, to the Honorable Gordon R. England, Secretary of the Navy, Dep't of the Navy 7 (July 2, 2004), available at http://www.nrdc.org/media/docs/040714.pdf

• In addition to strandings and non-auditory injuries, the harmful effects of mid-frequency sonar may include temporary or permanent loss of hearing, which impairs an animal's ability to communicate, avoid predators, and detect and capture prey; avoidance behavior, which can lead to abandonment of habitat or migratory pathways, and disruption of important behaviors such as mating, feeding, nursing, or migration; aggressive (or agonistic) behavior, which can result in injury; masking of biologically meaningful sounds, such as the call of predators or potential mates; and declines in the availability and viability of prey species, such as fish and shrimp.

Id.

Id.

Id.

Id.

E.C.M Parsons et al., Marine Pollution Bulletin 56, Navy Sonar and Cetaceans: Just How Much Does the Gun Need to Smoke Before We Act? 1 (2008), http://www.orcanetwork.org/habitat/sonareffects.pdf

Id.

See id.

Id.

Michael Jasney, Sounding the Depths II: The Rising Toll of Sonar, Shipping, and Industrial Ocean Noise on Marine Life, Natural Resources Defense Council 14 (2005), http://www.nrdc.org/wildlife/marine/sound/sound.pdf

Id.

Marine Mammal Annual Report, supra note 38 at 19.

“Conspecifics” refers to other organisms of the same species.

“Echolocation” is biological sonar used by cetaceans.

“Ondontocetes” are toothed whales.

See Cetacean Cmty. v. Bush, 386 F.3d 1169, 1172 (9th Cir. 2004).

857 F. Supp. 734, 735–37 (C.D. Cal. 1994).

Id. at 735.

Id. at 736.

Id.

Id.

Id.

Id. at 737.

Id.

Id. at 740.

Id. at 738. Faced with a similar factual scenario, the post-9/11 Supreme Court struck a very different balance between national security and environmental protection concerns in its 2008 decision in Winter. See infra Part III.2.

Ocean Mammal Inst. v. Cohen, No. 98-CV-160, 1998 WL 2017631, at *1 (D. Haw. Mar. 9, 1998), aff’d 164 F.3d 631 (9th Cir. 1998).

Id. at *3.

Id. at *6. These studies sought to measure the responses of humpback and sperm whales to bursts of low-frequency sonar. Id. at *1.

Id. at *3.

124 F. Supp. 2d 1173 (D. Haw. 2000).

Id. at 1173.

Id.

Id. at 1191.

Id. at 1200.

Id. at 1194.

249 F. Supp. 2d 1206 (D. Haw. 2003). The suit named “President George W. Bush as a defendant ‘in his capacity as a member of the National Command Authorities because the National Command Authorities will determine when a threat or warfare condition exists.’ However, since the President is not an ‘agency’ within the meaning of APA, Plaintiff cannot obtain judicial review under APA of its claims that the President violated, or will violate, MMPA or NEPA.” Id. at 1213–14.

Id. at 1207. Both the small take application and the Navy's Draft and Final EISs are specifically limited to use of SURTASS LFA sonar during training, testing, and routine military operations and will not cover use of the SURTASS LFA system in self-defense, in times of war, combat, or heightened threat conditions. Final Rule, supra note 27, at 46717.

Cetacean Cmty., 249 F. Supp. 2d at 1211–1214.

Id. at 1207, 1212–13.

See Reynolds, supra note 35 at 775.

NRDC v. U.S. Dept. of Navy, No. CV-01-07781, 2002 U.S. Dist. LEXIS 26360, at *6 (C.D. Cal. Sept. 17, 2002).

Id.

Id. at *19.

Id. at *24.

279 F. Supp. 2d 1129, 1137 (N.D. Cal. 2003).

Id. at 1137.

Id. at 1166.

Id.

Id. at 1138.

Id. at 1191.

Id. See Natalie Barefoot-Watambwa, Who Is Encroaching on Whom? The Balance Between Our Naval Security Needs and the Environment: The 2004 RRPI Provisions as a Response to Encroachment Concerns, 59 U. Miami L. Rev. 577, 602 (2005).

Press Statement, National Resource Defense Council, Statement from Joel Reynolds, NRDC, Regarding Navy LFA Settlement (Oct. 13, 2003), available at http://www.nrdc.org/media/pressreleases/031013a.asp

546 F. Supp. 2d 960, 963–68 (D. Haw. 2008).

Id. at 963.

Id. at 965.

Id. at 966.

Id. at 967.

Id.

Id.

Id.

Id. at 963.

Ocean Mammal Institute v. Gates, No. 107CV00254 (D. Haw. Jan. 13, 2009).

Id. at 1.

2008 WL 360852, *1 (N.D. Cal.).

“Dual criteria” is a standard proposed by Roger Gentry of the National Marine Fisheries Service. He explained that Low Frequency Active (LFA) sonar could be effective to detect submarines between 40 and 200 miles in most but not all cases. Therefore, “to account for vast variations in the width of the continental shelf, [he] would suggest that the EIS have a dual criterion, such as ‘12 nmi from the shore, OR the distance to the 300 m[eter] isobath, whichever is farther.’” NRDC, Inc. v. Evans, 279 F. Supp. 2d 1129, 1162 (N.D. Cal. 2003.)

NRDC v. Gutierrez, supra note 107 at *6.

Id. at *11.

Weinberger v. Catholic Action, 454 U.S. 139 (1981).

Id. at 141.

Id.

Id.

Id. at 142.

Id. at 140, 141.

Id. at 146.

Id.

40 C.F.R. § 1506.11 (2010). “According to CEQ, this provision has been requested just 41 times since the regulations took effect in 1978.” Alexander, supra note 120 at 4.

For a discussion of NEPA's emergency exception and some of the challenges that courts have faced in interpreting it, see generally Robert Orsi, Comment, Emergency Exceptions from NEPA: Who Should Decide?, 14 B.C. Envtl. Aff L. Rev. 481 (1987).

Kristina Alexander, Congressional Research Service, CRS Report for Congress, Whales and Sonar: Environmental Exemptions for the Navy's Mid-Frequency Active Sonar Training, February 18, 2009, at 4, available at http://www.fas.org/sgp/crs/weapons/RL34403.pdf [hereinafter Alexander].

Id. Alexander, supra note 120 at 4.

Id. at 10.

Id.

Id.

512 F. Supp. 1363 (E.D. Mich. 1981).

Alexander, supra note 120 at 11.

Id. at 10.

Id. at 11.

Nat’l Audubon Soc’y. v. Hester, 801 F.2d 405 (D.C. Cir. 1986).

Alexander, supra note 120 at 10.

Id.

Id.

Id.

Id.

801 F.2d at 407.

Id. at 11.

Id.

1991 WL 330963 (D. Mass. May 6, 1991).

Id. at 2. Alexander, supra note 119, at 11.

Id.

Id.

Id. at *6.

Id. at *5.

NRDC v. Winter, 527 F. Supp. 2d 1216, 1229–30 (C.D. Cal. 2008).

Id. at 1224.

Id.

NRDC v. Winter, 518 F.3d 658, 662–663 (9th Cir. 2008).

Id. at 663.

Winter v. NRDC, 129 S. Ct. 365, 367 (2008).

Id.

Id.

Id. at 391 (quoting 42 U. S. C. § 4332) (Ginsburg, J., dissenting).

NRDC v. Winter, No. 8:07-cv-00335-FMC-FMOx, 2007 WL 2481037, at *1 (C.D. Cal. Aug. 7, 2007).

Terra Bowling, Supreme Court Says Navy May Continue Sonar Training, SandBar, 7:4, Jan. 2009, http://nsglc.olemiss.edu/SandBar/SandBar7/7.4sonar.htm

NRDC v. Winter, supra note 154 at *2.

Id. at *1.

Id.

William Krueger, Recent Development: In the Navy: The Future Strength of Preliminary Injunctions under NEPA in Light of Winter v. NRDC, 10 N.C. J.L. & Tech. 423, 432 (2009) [hereinafter Krueger].

Six injunctive measures were imposed on the Navy's MFA sonar: 1. Imposing an exclusionary zone, covering a distance from the coast to twelve miles, within which MFA sonar could not be used; 2. increasing the amount of monitoring for marine mammals, both during and prior to exercises; 3. requiring a ten minute monitoring period for helicopters before they deploy “dipping sonar,” 4. restricting the use of MFA sonar in “geographic chokepoints”; 5. requiring the complete shutdown of MFA sonar when a marine mammal is spotted within 2,200 yards of the ship in question; and, 6. requiring that MFA sonar be powered down by six decibels (dB) when a condition called surface ducting, during which sound waves travel much farther in water, is occurring. Id.

Id. at 433.

The Supreme Court in Winter held that the district court abused its discretion in requiring the Navy to power down MFA sonar by six decibels when significant “surface ducting” conditions occur. During surface ducting conditions, active sonar becomes more useful near the surface and less effective at greater depths. The Court concluded that because surface ducting is rare and unpredictable, it is especially important for the Navy to train under these conditions when they occur. See Winter v. NRDC, slip op. at 20–21.

Id.

Krueger, supra note 159 at 434.

Id.

Catherine Mongeon, In Brief: NRDC's Battle Against the Navy, 35 Ecology L.Q. 277, 282 (2008) [hereinafter Mongeon].

Id.

502 F.3d 859, 865 (9th Cir. 2007).

508 F.3d 885, 887 (9th Cir. 2007).

530 F. Supp. 2d 1110, 1118–1121 (C.D. Cal. 2008).

527 F. Supp. 2d 1216, 1216 (C.D. Cal. 2008).

518 F.3d 658, 682 (9th Cir. 2008).

129 S Ct. at 367.

Id.

Id. at 365.

Id. at 367.

Id.

Id.

Id.

Id.

Id. (citing Goldman v. Weinberger, 475 U.S. 503, 507 (1986)).

Id.

Id.

Id. at 368.

Id.

Id.

Id.

Id.

Id.

Id.

Id. On June 21, 2010, the Supreme Court revisited the issue of preliminary injunctions in another NEPA context in Monsanto v. Geertson Seed Farms. As in Winter v. NRDC, the Court's analysis again focused not on the merits of the environmental review but on whether the preliminary injunction that the district court issued was too broad. In this regard, the Supreme Court concluded that the district court's injunction was too broad, holding that the injunction improperly prevented the government from approving partial deregulation without first complying with full environmental impact review. See U.S. Supreme Court Issues Decision in Monsanto Case, http://legalplanet.wordpress.com/2010/06/21/u-s-supreme-court-issues-decision-in-monsanto-case/

Joel R. Reynolds, Taryn Kiekow, & Stephen Zak Smith, No Whale of a Tale: Legal Implications of Winter v. NRDC, 36 Ecology L.Q. 753, 766 (2009) [hereinafter Reynolds et al.]

Id.

Id.

Id.

Lisa Lightbody, Case Comment, Winter v. Natural Resources Defense Council, Inc., 33 Harv. Envtl. L. Rev. 593, 600 (2009).

Id.

Id.

Id.

Id.

Id. at 605.

Id. at 606.

Id.

Id.

Id.

Id.

Reynolds et al., supra note 192 at 771.

129 S Ct. 356, 387 (Ginsburg, J, dissenting).

Id.

Id.

Id. at 391.

Id. at 393.

See supra Part 2.1. The most successful of these cases was NRDC v. Evans, which produced an effective settlement with the Navy that provided substantive protections for marine mammals. See supra notes 88–95 and accompanying text.

See 16 U.S.C. §§ 1531–1543 (2006).

Vassar, supra note 21 at 297.

16 U.S.C. § 1536(j). As of this writing, the Secretary of Defense has not sought a national security exemption under the ESA.

Id. at 303.

Id. at 299.

Id. at 305.

See Craig, supra note 14 at 376.

For a discussion of the Supreme Court's decision in Winter v. NRDC, see Part 3.2.

See Part 2.2. supra for a discussion of these cases.

See fn 1 supra.

For a helpful discussion of the military's exceptions and exemptions from environmental law statutes, see generally Craig, supra note 14. See also David M. Bearden, Exemptions from Environmental Law for the Department of Defense: Background and Issues for Congress (2007), available at http://ncseonline.org/NLE/CRSreports/08Jun/RS22149.pdf

16 U.S.C. § 1536(a)(2).

NRDC v. Winter, 2008 U.S. App. LEXIS 4504, *17 n.11 (9th Cir. Feb. 27, 2008).

Id.

See 17 U.S.C. § 1371(f).

Mongeon, supra note 166 at 282.

Krueger, supra note 159 at 434. CEQ's authority to grant such relief derives from 40 C.F.R. § 1506.11.

For example, Section 318(a) of the National Defense Authorization Act for FY2004 (P.L. 108–136) authorized the Secretary of the Interior to exempt military lands from designation as critical habitat under the ESA, whereas section 318(b) directs the Secretary of the Interior to consider impacts on national security when deciding whether to designate critical habitat. Exemptions from Environmental Law for the Department of Defense, http://ncseonline.org/NLE/CRSreports/08Jun/RS22149.pdf

• Section 319 of P.L. 108–136 authorized a broad exemption from the MMPA for “national defense” that the Secretary of Defense may invoke in consultation with the Secretary of Commerce, the Secretary of the Interior, or both as appropriate. Id. Section 319 also amended the definition of “harassment” of marine mammals, as it applies to military readiness activities, to require greater scientific evidence of harm, and required the consideration of impacts on military readiness in the issuance of permits for incidental takings. Id.

See Vassar supra note 21 at 290.

16 U.S.C. § 1362(18).

For a discussion of the weakening of MMPA protections throughout the amendment process in the past two decades, see generally Elena McCarthy & Flora Lichtman, The Origin and Evolution of Ocean Noise Regulation under the U.S. Marine Mammal Protection Act, 13 Ocean & Coastal L.J. 1 (2007).

See David M. Bearden, Exemptions From Environmental Law for the Department of Defense: Background and Issues for Congress, (May 15, 2007), available at http://www.fas.org/sgp/crs/natsec/RS22149.pdf

The Department of Defense authorized this exemption after conferring with the Department of Commerce.

Navy Office of Information, New National Defense Exemption to MMPA Authorized for Navy, Jan. 23, 2007, available at http://www.navy.mil/search/display.asp?story_id=27415

Id.

NEPA and the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) also lack citizen suit provisions.

See generally James R. May, Now More than Ever: Environmental Citizen Suit Trends, 33 ELR 10704 (2003).

See Reynolds, supra note 35 at 800 (quoting Michael Jasny et al., Sounding the Depths II: The Rising Toll of Sonar, Shipping, and Industrial Ocean Noise on Marine Life 28 (2005), available at http://www.nrdc.org/wildlife/marine/sound/sound.pdf (“Congress should add a ‘citizen-suit’ provision to the MMPA, which would strengthen the authority of the public to do what, in some cases, the regulatory agencies will not.”)

Plaintiffs who file suit under citizen suit provisions must still satisfy Article III standing requirements, however.

See Randall S. Abate, Public Nuisance Suits for the Climate Justice Movement: The Right Thing and the Right Time, 85 Wash. L. Rev. 197, 232–33 (2010).

Whale Conservation, Protection, and Study Act, H.R. 2455, 111th Cong., 1st Sess. (May 18, 2009).

Id. § 3(f).

Id. § 2(b)(3).

Id. § 3(g).

See generally Randall S. Abate, Marine Protected Areas as a Mechanism to Promote Marine Mammal Conservation: International and Comparative Law Lessons for the United States, 88 Or. L. Rev. 255 (2009).

Letter from Jane Lubchenco, NOAA Administrator, to Nancy Sutley, Chair, White House Council on Environmental Quality, Jan. 19, 2010, available at http://www.nrdc.org/media/docs/100119.pdf

Id.

Id.

Complaint, Defenders of Wildlife v. U.S. Dep't of Navy (S.D. Ga. Jan. 28, 2010), at para. 1, available at http://www.southernenvironment.org/uploads/publications/Final_complaint_-_12810.pdf [hereinafter Complaint]. See also Whales v. Sonar: NOAA May Limit Sonar Tests, but Another Case Heads to Court, Discover Magazine, Feb. 1, 2010, available at http://blogs.discovermagazine.com/80beats/2010/02/01/whales-vs-navy-noaa-may-limit-sonar-tests-but-another-case-heads-to-court/

Complaint at para. 1.

Id.

Id. at para. 2. In fact, a right whale calf was born in March 2010 near the proposed site of the Navy's training center. See Endangered Right Whale Born Near Proposed Navy Training Site, Los Angeles Times, Mar. 24, 2010, http://latimesblogs.latimes.com/unleashed/2010/03/endangered-right-whale-born-near-proposed-navy-training-site.html

Complaint, supra note 252 at para. 2.

The National Marine Fisheries Service (NMFS) has described the North Atlantic right whale as one of “the world's most critically endangered large whale species and one of the world's most endangered mammals.” Id. (quoting 73 Fed. Reg. 60,173, 60,173 (Oct. 10, 2008)).

Reynolds, supra note 35, at 801.

Associate Professor of Law, Florida A & M University College of Law. The author gratefully acknowledges the assistance of Michelle McDonald, Giselle Peruyera, Marquita Booker, Mark Silberstein, Natalia Gove, Luke Waters, Bette Collazo, Andrea Perez, Farnaz Ghaffari, and Danielle Murray in preparing this article. The article was supported by a research grant from Florida A & M University College of Law.