A Silent Victory

Last summer, the United States Navy invited 22 countries to participate in exercises across a wide swath of the Pacific Ocean. For whales and dolphins, though, the gathering probably felt more like war than war game. Training exercises such as the biannual RIMPAC event—which includes naval ships, submarines, aircraft, and all the noise pollution that comes with them—are dangerous to cetaceans. In short, noise can be a deadly weapon.

The tide may finally be turning in the whales’ favor, though. A federal court ruled yesterday that the government has fallen short of its legal obligation to protect marine mammals from naval exercises in the Pacific.

Active sonar—bouncing sound waves off physical objects to produce an underwater map—is a major threat to marine mammals. Whales, for example, are exquisitely attuned to sound. Their ear bones are about the size of a human head, and those ears provide the animal with most of its sensory information in the dark underwater environment. Whales rely on their sensitive hearing to find food, communicate with peers, and mate. Marine biologists have a saying that sums this up succinctly: A deaf whale is a dead whale.

Deploying active sonar near a whale that’s trying to hunt is a bit like shining a spotlight in the eyes of a human in the grocery store. So when sonar-equipped ships enter an area, whales stop feeding. They also stray from migration paths and abandon their traditional habitats. If a whale is close to the ship when sailors switch on their sonar system, the consequences can be even more dramatic. The blast of sound can damage the whales’ lungs and digestive system and cause temporary or permanent hearing loss.

Under the Marine Mammal Protection Act, the National Marine Fisheries Service must review any activities that could pose a threat to, well, marine mammals. Its review isn’t always satisfactory, though. In December 2013, the NMFS approved the navy’s five-year plan for sonar and ordinance use in the Pacific Ocean—even though the military’s own data showed that the activities would inflict harm on marine mammals 9.6 million times. The plan represented a 1,100 percent increase in incidents of harm to whales and dolphins.

The following month, NRDC and a coalition of environmental groups sued the NMFS for failing to fulfill its obligations. (Disclosure.) The organizations demanded that the government develop better safeguards to protect marine mammals from the navy’s sonar and explosives, such as declaring certain areas off-limits when whales are feeding or mating. In response, the navy pointed out that it had set aside a plot of sea—3.1 miles in length—near the Hawaiian coast to protect humpback whales and contended that any additional restrictions would hamper its operational ability. That argument, though, seems a teeny bit unreasonable, considering it claims its exercises need 2.7 million square nautical miles, an area larger than the continental United States.

Federal Judge Susan Oki Mollway rejected the arguments made by the navy and the NMFS—and the language she used in her opinion verged on mockery in some places. When the NMFS said it would have come to the same conclusion even if it had used superior data, she dismissed this as an “it makes no difference” argument and accused the agency of offering “after-the-fact explanations.”

Judge Mollway even waxed nautical in describing her search for a rational justification for the NMFS’ decision: “This court feels like the sailor in Samuel Taylor Coleridge’s ‘The Rime of the Ancient Mariner’, who, trapped for days on a ship becalmed in the middle of the ocean, laments, ‘Water, water, every where, Nor any drop to drink.’ ”

Although the whales won this round, Judge Mollway’s ruling is only on the merits, not on the remedies. That’s a fancy legal way of saying that the judge hasn’t yet decided on what the NMFS must do to bring itself into compliance with the law. That decision is likely months away. Until then, whales can breathe a sigh of relief, presumably out of their blowholes.