Whales in The Supreme Court

In Winter v. Natural Resources Defense Council (NRDC), the court heard arguments from the Navy and the NRDC about probable injuries to marine animals due to sonar. Did the Navy have to file an environmental impact statement (EIS) as established under EPA law? The justices seemed to clearly lean on the side of the Navy and the Navy's interpretation of the science. In fact Justice Scalia basically coached the Navy's counsel through his arguments. Is this deference to the military justified? How does that bode for whales? For environmental impact statements?

What Environment?

In February 2007, the Navy initiated training exercises without filing the environmental impact statement (EIS) required by the National Environmental Protection Act of 1969 (NEPA). The EIS is required by law and is meant to predict possible environmental harm from the sonar training. Following the Navy's action, various groups including the Natural Resource Defense Council (NRDC) challenged the action in court. The case wound up in the Supreme Court yesterday, where the prosecution and defense presented their arguments. (transcript.) The counsel for the Navy, General Garre, summarized for Justice David Souter the Navy's decision to go ahead without the EIS, arguing that the Navy broke the law because: "it doesn't specifically say what happens if they [the laws] are not followed".

A District Court had originally found in favor of NRDC, deciding that the Navy had violated NEPA. But instead of complying with the court injunction, the Navy wrote its own environmental assessment EA, and presented this to an executive-branch administrative agency called the Council on Environmental Quality (CEQ). The CEQ found that the Navy's mission constituted "emergency circumstances", thereby allowing the Navy to circumvent the law.

The Navy took this CEQ opinion back to the court, arguing that the court should dissolve its injunction. In more court reviews, Los Angeles U.S. District Judge Florence Marie Cooper sifted through scientific evidence and determined criteria for when the Navy should turn off sonar. According to the NRDC brief, the District Court reviewed "thousands of pages of briefing and evidence over the course of many weeks, and tour[ed] a Navy destroyer--to assess the Navy's contention that the mitigation measures would risk the Navy's ability to train and certify its strike groups."

The mitigations the NRDC asked for weren't new, in fact the Navy had followed those very same mitigation procedures previously. The District Court considered that in previous Navy training exercises, the Navy had "trained and certified its strike groups using the two mitigation measures at issue in this appeal". In fact, following the lower court's decisions, the Navy successfully continued training exercises in the Pacific Ocean, "completing the last 13 of 14 training exercises, 8 of which were under the current rules". The Navy followed the mitigation procedures and did not appeal to the court for relief. Richard Kendall, who argued on behalf of NRDC pointed this out to the Supreme Court as well as the fact that the LA District court had already loosened its initial ruling to accommodate the Navy.

But the Navy doesn't want to take any more steps to mitigate environmental damage (It too, conceded several points before bringing its case to the high court.) Despite the fact that the Navy's training was not impeded by the mitigations the LA court requested, the Navy and the President appealed to the Supreme Court to overrule any measures imposed by the lower courts, and yesterday the Supreme Court questioned the two sides about whales, sonar, and impact statements. It considered issues of standing and equity, as well as the role of the executive branch in determining the fate of endangered species.

Sometimes the court seemed aloof to the information in the briefs. In balancing the possible harm to marine animals, Chief Justice Roberts hyperbolically suggested that one possible harm was: "the potential that a North Korean diesel electric submarine will get within range of Pearl Harbor undetected". NRDC counsel Kendall corrected the Chief Justice, noting that the questions in the case concerned only military training, not combat. Justice Breyer also seemed confused, and elicited a laugh by suggesting that all military exercises were destructive: "You go on a bombing mission, do they have to prepare an environmental impact statement first?" Mr. Kendall said again: "No", since NRDC was arguing for basic mitigation measures during training, ones that the Navy had previously followed, which had not stopped training.

Whales & Sonar: It's Not Pretty

Research shows that whales become disoriented, injured, and die after sonar testing. Strandings and deaths that have been frequently documented; in North Carolina (2005); in Haro Strait off the coast of Washington State (2003); in the Canary Islands (2004, 2002, 1989, 1986, 1985); in Madeira (2000); in the U.S. Virgin Islands (1999, 1998); Greece (1996), and the Bahamas (2000), and off the coast of Spain (2006), just for starters. The coincidence of whale strandings or deaths and naval sonar testing exercises seems too obvious to ignore. Recent research indicates how the marine mammals become injured and die, although cause and effect is sometimes difficult to pinpoint.

After the 2003 mass strandings in the Canary Islands, Nature published a report by Jepson et al, showing that beaked whales had gas filled cavities and emboli in their organs and tissues. The animals tend to hemorrhage around their ears and brain and according to Jepson, the whales died from decompression sickness.1 A subsequent study in Science, 2004 found the same effect in sperm whales. 2. Jepson later reported that embolisms were also present in whales stranded off the coast of Spain in 2006. 3 More studies of strandings found the same. 4 So, common to the many government funded reports, and consistent with observation, tagging, and corpse analysis, whales become disoriented when subjected to sonar, leading to decompression sickness 5.

Recent research by teams in the Ian Boyd lab at St Andrews University and in the Peter Tyack lab at the Woods Hole Oceanographic Institute suggest that the whales try to escape the sound, causing them to dive frantically, which upsets their usual feeding and breeding habits. This erratic diving behavior causes the bends, hemorrhaging and injuries, Tyack told Times Online in a story published September 28, 2008:

"[The Navy] uses pulses of similar frequency and duration to the pulses emitted by killer whales and is very loud. It seems to have a particularly strong effect on species, such as small beaked whales, of which killer whales are the primary predator."

Beaked whales are most susceptible to harm because of their behavioral response of abnormal diving in the presence of sonar. Scientists are closing in on the mechanisms for injury and possible ways to avoid them. In the meantime, the Navy publicly denies all of this this research.

This Won't Hurt at All, Says the Navy

The justices of the Supreme Court acknowledged they can't evaluate science. When presented with rationale by the Navy about needing to train at night because of thermal layers, here's what Justice Breyer said about the Navy's stance: "Fine, they went on some exercises and they didn't run into these layered things. So obviously they couldn't have training." (Thermal layers and sonar are not too complicated for a lay person to understand at a basic level, as here in the book, "How To Make War", by James Kunnigan, Chap. 10: Navy: Run Silent Run Deep.)

The court only anemically challenged the Navy's General Garre, who repeated asserted that the Navy's sonar causes no harm. Garre also claimed that the respondents hadn't shown "irreparable harm". For instance General Garre referred the court to a Navy document listing "all the species of beaked whales and explained that the harms that are predicted in the environmental assessment are non-injurious, temporary harms". Justice Samuel Alioto asked Garre to explain this in "lay terms". Garre led Alioto to conclude there wasn't "physical injury", rather the whales might, as Alioto put it, just: "swim in a different direction"? (As if your child was whining in the living room so you wandered into the kitchen to get yourself a snack, rather than, that you were suddenly subjected to unending earth-shatteringly loud, nerve-ripping noise that caused you to flee up to the attic window, cover your exploding ears and plunge from the roof.) Garre assured Alioto: "that's right". But here's how the noise sounds to the mamals according to the NRDC:

"In sound intensity, in this courtroom if we had a jet engine and you multiplied that noise by 2,000 times, correcting for water, that's the sound's intensity that would be going on in the water if you were a marine mammal near that source."

That's loud. Despite the Navy's assertions, the NRDC presented significant evidence of harm in its briefs. Kendall disputed General Garre that sonar caused "no harm." He described the noise, the embolisms, the gas filled pockets, and the hemorrhaging.

What the Navy Doesn't Want Us Know?

People have long suspected the Navy knows more then they're letting on about how sonar effects marine life. According to the NRDC brief (PDF) the Navy predicted in their environmental assesment that the SOCAL sonar training would result in 170,000 incidents to marine mammals -- harassment, injuries, or deaths -- and 548 permanent injuries for beaked whales.

The Navy denied and backpedaled about the possible harm to marine animals during Supreme Court questioning, but there is plenty of evidence that militaries of the world understand sonar's effects. The science journal Nature obtained an unpublished 2007 report from the UK Military under the Freedom of Information Act 2000 documenting that sonar negatively effects whale behavior and can lead to death. 6 The UK military ran Operation Anglo-Saxon 06 in 2006 and reported on whale activity during the "submarine war-games". Using hydrophones, researchers found the number of whale recordings dropped by 75% over during sonar exercises. The whales stopped vocalizing and foraging for food, and the UK military predicted this would lead to '"second and third order effects on the animal and population as a whole"', including starvation and death, according to the report.

To the extent the research is sparse perhaps it's because the US Navy has tried to suppress its findings. Nature reported in "Panel quits in row over sonar damage" in 2006, that the US Navy pressured scientists to suppress evidence of harm from sonar. 7 The US Marine Mammal Commission (MMC) was convened by Congress in 2003 to advise Congress on a plan to research whales and sonar, however the commission broke apart, plan-less, after 2 years of meetings.

Nature spoke to members of the failed MNC who said that the science had been "highly politicized". According to one participant, "the Navy, as well as other groups that use sonar, including geophysical researchers and the oil and gas industry, blocked a consensus." Lindy Weilgart of Dalhousie University in Nova Scotia, Canada, told the journal: '"This process has been a travesty of fiscal responsibility, scientific integrity, and environmental stewardship."'

Environmental Law, by the Navy: "What He Said."

In the beginning of the hearing Supreme Court pursued the facts pertaining to the Navy's decision to ignore the law requiring the EIS, and simply construct its own environmental assessment (EA) according to it's own criteria, unvetted by anyone but the Navy, and not subject to public comment.

Different justices questioned General Garre about the CEQ's authority as an office in the White House to override environmental law set out in NEPA. They suggested that perhaps the only "emergency" was that the Navy had ignored the legal requirement for the EIS before starting training. Then Justice Scalia proposed a tactic of argumentation for General Garre:

Scalia: "Look, the problem you face and maybe you're being whipsawed, is that you are effectively estopped from the argument that no EIS is necessary by the fact that you have agreed to these alternative arrangements. But you should not be estopped from arguing that at the time the EA was issued that was not a good faith completion of all the Navy's responsibilities....It assumes that the EA wasn't enough. And I'm not sure that we -- that that assumption is valid."

General Garre: "Well, that's right....the Navy believes that its EA was not only prepared in good faith, but was appropriate and reached the right conclusions...." Garre had repeatedly stated that the sonar training would cause little "likelihood of irreparable injury..." But Justice David Souter wondered whether: "without the EIS, the Navy is acting in -- in a state of -- of some degree of ignorance greater than would be the case if -- if it had done -- done the EIS."

Scalia addressed Garre again:

"The EA demonstrates in your view that the EIS would -- would very likely say that this -- this action by the Navy is okay. And since that is the case, there is -- there is no probability of irreparable harm; to the contrary, there is the probability of no irreparable harm because of the EA."

Said General Garre: "Well, we agree with that." (The Navy does agree with that, even though the EA predicted over 500 serious injuries and 170,000 incidents, it concludes no harm, no harm, again and again.)

Scalia later suggested:

"In all -- in all of these cases it is controverted, or in most of them, whether an EIS is either necessary -- is even necessary. So if the mere allegation that it was necessary gives rise to an allegation of irreparable harm, you are going to get a preliminary injunction in all cases?"

General Garre replied: "I think that's right."

However, earlier in the questioning, General Garre had assured the court that he recognized the Navy's original "duty to prepare the EIS". He had told the justices about the Navy's steadfast commitment to completing the tardy EIS document per previous legal agreements. Now, suddenly, Garre asserted he was "contesting" what he had before agreed to -- that the Navy needed to complete an EIS. This confused Justice Ginsburg, who remembered that 30 minutes earlier Garre had stated his commitment to "meet the goal" of producing the EIS by January, 2009 (although, disconcertingly, the training ends in 2008). Ginsburg said: "I thought you conceded that point". General Garre the quickly apologized for his earlier concession: "if I misspoke".

Who needs Scalia's book "Making Your Case Persuading Judges"? Just show up for the tutorial, let him argue your points, and nod -- "what Scalia said".

Good Stewards of The Environment

In the end, the Supreme Court justices puzzled over why the Navy was dragging its heels if the agency had completed the EA, was committed to completing the EIS, and if there was "no irreparable harm" to mammals.

Garre, perhaps emboldened after Scalia's pat on the back, suggested in closing that the NRDC did not even have standing if beaked whales were harmed.

One justice queried the two parties about why they hadn't worked it out, as opposed to leaving it to the courts. Judges aren't experts on Naval exercises or marine biology, the justices pointed out. NRDC's Kendall answered that "the Navy is focused on having it its way or no way". Chief Justice John G. Roberts retorted, "that's not fair"; the Navy had continually compromised, he said, but "no good deed goes unpunished".

Scientists warn that the beach strandings may indicate an even larger problem -- not all animals may be washed ashore, many more may be dying and lost at the sea. In a review of research on whale injuries, causes, and mitigation by Marine Pollution Bulletin. 8, the authors write: "...the greatest user of military sonars in the world, the US Navy, appears to be in denial about the situation." While the US has taken significant action to weaken cetacean protection in national and international waters, especially with regard to sonar, the Navy continues to boast about its commitment to being "good stewards of the environment".

The Supreme Court will issue its decision later this session.

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1Jepson et al, Gas-bubble lesions in stranded cetaceans: was sonar responsible for a spate of whale deaths after an Atlantic military exercise? Nature, 425, 575-57, 9 October 2003: doi:10.1038/425575a.
2 Moore and Early; Cumulative sperm whale bone damage and the bends, Science 306, Vol. 306. no. 5705, p. 2215. 2004: doe: 10.1126/science.1105452
3 Dalton, Rex; More whale strandings are linked to sonar : Nature 440, 593 30 March 2006 doi :10.1038/440593a.
4 Fernandez, A. Gas and fat embolic syndrome" involving a mass stranding of beaked whales (family Ziphiidae) exposed to anthropogenic sonar signals.Veterinary Patholology 42:446-457 2005.
5 Tyak et al. Extreme diving of beaked whales. Journal of Experimental Biology 209, 4238-4253. 2006 doi: 10.1242/jeb.02505).
6 Cressey, Daniel; Sonar does affect whales, military report confirms. Nature, Aug 1, 2008. doi:10.1038/news.2008.997.
7 Dalton, Rex; Panel quits in row over sonar damage. Nature 439, 376-377 26 January 2006 doi :10.1038/439376a;doi:10.1038/439376a
8 Parsons et al., Navy sonar and cetaceans: Just how much does the gun need to smoke before we act? Marine Pollution Bulletin, July, 2008 doi:10.1016/j.marpolbul.2008.04.025

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Acronym Required previously wrote on this subject in "Whales In A Time of War", and "Whales in Court".

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