Supreme Court Limits Protection for Whales from Navy Sonar
Four measures to safeguard marine mammals remain in place
WASHINGTON, DC (November 12, 2008) – Today, the nation’s highest court issued its decision regarding the Navy’s use of mid-frequency active sonar during training exercises in southern California.
"The Supreme Court held that the lower courts did not properly balance the competing interests at stake, and struck down two significant safeguards that reduce harm to whales from high-intensity sonar training,” said Joel Reynolds, senior attorney and director of NRDC’s marine mammal program. “The decision places marine mammals at greater risk of serious and needless harm. However it is a narrow ruling that leaves in place four of the injunction’s six safeguards. It is significant that the court did not overturn the underlying determination that the Navy likely violated the law by failing to prepare an environmental impact statement.”
"It is gratifying that the court did not accept the Navy’s expansive claims of executive power, and that two thirds of the injunction remains intact,” said Richard Kendall, NRDC co-counsel.
The Navy acknowledges that sonar can be deadly to marine mammals, and that the exercises at issue would “take” an estimated 170,000 marine mammals, including causing permanent injury to more than 500 whales and temporary deafness to at least 8,000 whales.
In January, the White House issued exemptions to the Navy after a federal court ordered the Navy to safeguard marine mammals against harm from high-intensity, mid-frequency active sonar being used in a series of exercises off southern California.
In March, the Ninth Circuit Court of Appeals upheld the lower court mitigation measures, requiring the Navy to maintain a 12 nautical mile no-sonar buffer zone along the California coastline; to avoid other key whale habitat; to shut down sonar when marine mammals are spotted within 2,200 yards; and to monitor for marine mammals using various methods. The Navy appealed to the U.S. Supreme Court on two of the six measures, the 2,200 yard MFA sonar shutdown and power down during surface ducting conditions.
More than one year ago, the California Coastal Commission urged the Navy to adopt similar protective measures during these exercises, finding them necessary to bring the maneuvers into compliance with California’s coastal laws, but the Navy ignored the commission’s request, relying instead on a mitigation scheme that the lower court found “woefully inadequate and ineffectual.”
High-intensity MFA sonar can blast vast areas of the oceans with dangerous levels of underwater noise, and has killed marine mammals in numerous incidents around the world. Many scientists believe that animals seen stranded on the beach represent only a small part of the technology’s toll, given that severely injured animals would rarely come to shore. The waters off southern California have some of the richest marine habitat in the country, and include five endangered species of whales, a globally important population of blue whales, the largest animal ever to live on earth, and as many as seven individual species of beaked whales, which are known to be particularly vulnerable to underwater sound.
The lawsuit was brought by a coalition of conservation organizations led by NRDC, including the International Fund for Animal Welfare, the League for Coastal Protection, Cetacean Society International, and Ocean Futures Society and its president and founder Jean-Michel Cousteau. A related lawsuit challenging the Navy’s actions was brought by the State of California on behalf of the California Coastal Commission.