Download Introduction - Department of Natural Resources

Jessie Epstein
Carly Furman
James Kopco
Margaret Kurth
Elana Olsen
Gerardo Zepeda
Balancing National Security and Marine Life
Introduction
Throughout history, human activity has had a large impact on ecosystems and
biodiversity, creating the need for regulation. Marine mammals are a crucial component of the
ocean and they are currently being threatened by increasing levels of anthropogenic noise that
are polluting the ocean. The United States Navy operates active sonar systems that have the
potential to harass marine mammals. The original provisions of the Marine Mammal Protection
Act (MMPA) imposed a moratorium on the “taking” of marine mammals, thus restricting the
Navy’s capacity to utilize active sonar technologies. The MMPA was amended in 2003 to allow
the Navy more freedom in its training operations. There has been a considerable amount of
research on the effects of active sonar on marine mammals, and while no causal relationship has
been found, the military’s use of active sonar has been repeatedly linked to mass strandings and
marine mammal deaths. The NRDC and other environmental groups have sued the Navy on
numerous occasions on the grounds that it does not comply with the MMPA and other important
environmental acts (Marine Mammal Commission, 2007).
There are a number of groups involved in this issue, each having its own agenda. The
U.S. Navy wishes to act in the interest of national security and believes that using low and midfrequency sonar is necessary to maintain public safety. On the other hand, environmentalists are
speaking out from an ethical perspective, both in support of animal rights and for equality under
the law (the Navy should not be exempt from federal laws). Proponents of active sonar argue
that the United States Navy should be allowed to use sonar in their training exercises because
there is no guarantee that other countries will not prioritize the rights of marine mammals before
national defense.
The issue is complicated by the fact that the world’s oceans are a global commons and
although there is some regulatory policy in place, it is difficult to enforce the rules of the sea.
Also, in the ocean, there are no boundaries limiting the travel of sound. It is impossible to shelter
marine mammals completely from other forms of anthropogenic noise that are rampant
throughout the sea. However, it is possible, through mitigation techniques and legislation, to
alleviate sound emissions in order to reduce harm to these creatures.
Overview of Active Sonar and its Effect on Marine Mammals
Active sonar is a long range system that enables the Navy to detect enemy submarines
(NOAA, 2002). Active sonar works by transmitting pulses of sound into the water, which then
bounce off objects creating echoes. A sonar receiver then “hears” these echoes and is able to
calculate the distance from the object. The Navy uses passive sonar as well mid-frequency
(MFA) and low-frequency (LFA) types of active sonar. Surveillance Towed Array Sensor
System (SURTASS) LFA is a sonar system that contains both passive and active components.
When a target is too quiet to be detected by the passive SURTASS system alone, the LFA system
will be used (Department of the Navy).
LFA sonar operates at frequency range below 1000 Hz and is capable of traveling long
distances because in low frequency sounds attenuate slowly in the water (Department of the
Navy). The Navy emphasizes active sonar as an essential defensive and protective component
needed to ensure national security (Department of the Navy). According to the National Marine
Fisheries Service (NMFS), “The SURTASS LFA sonar system would meet the Navy's need
for improved detection and tracking of new generation submarines at a longer range. This
would maximize the opportunity for U.S. armed forces to safely react to, and defend against,
potential submarine threats while remaining a safe distance beyond a submarine's effective
weapons range” (NOAA Fisheries: Office of Protected Resources).
The problem arises when considering the frequencies of active sonar and the impact these
frequencies have on marine life. Hal Whitehead, a biologist at Dalhousie University who studies
the behavior, ecology and social structure of whales, explains that LFA can have a range of
consequences for ocean life from rupture of organs, through permanent hearing loss, temporary
hearing loss, disturbance, masking of sounds, and psychological effects. In the past twenty years,
researchers have accumulated evidence linking active sonar with curious mass stranding events
and cetacean deaths (Loverock,, 2002).
Citing federally funded research, the United States Navy posits that active sonar will not
harm marine mammals as long as the sound frequencies are emitted at an intensity level below
180 decibels (Department of the Navy). LFAs are not operated below this threshold, but rather
at intensities closer to 235 decibels. Even though the Navy claims that the LFA sonar will have
no adverse effects on whales or other marine life, the Environmental News Services quotes the
Navy's document regarding the March 2000 stranding, which says, “While the precise causal
mechanisms of tissue damage [in the dead marine mammals] are unknown, available evidence
points to acoustic or impulse trauma.” Scientists hypothesis that Sonar may cause whales to
beach themselves by impairing their sense of direction and ability to navigate, disorienting them,
and causing them to surface quickly from fright and swim too close to the shore (Giuliano,
2002).
Background and Historical Context of the Controversy
Although active sonar has been around since WWII, public scrutiny of the technology has
been a recent phenomenon. The issue first gained national media coverage and garnered public
attention when numerous incidents of beached whales were reported after exposure to sonar in
the late 1990s. In May of 2000, the Navy canceled LFA testing off the New Jersey shores due to
environmental concerns for the first time (Kaufman). Then, in 2002, the NRDC, along with other
conservation groups, obtained a preliminary injunction to halt the Navy’s use of LFAs. In
response to this, the senior attorney at NRDC and the director of the Marine Mammal Protection
Project, Joel Reynolds stated, “We think this is very important because the Navy has now been
told it cannot simply reserve a vessel, schedule an exercise and proceed without worry of
environmental impacts when dealing with low-frequency sonar systems.” In 2003, Congress
passed amendments to the Marine Mammal Protection Act (MMPA), easing restrictions and
providing additional exemptions for military readiness activities and federal scientific research
(Inkelas). The main regulatory tool of the MMPA was a provision that prohibited the "taking" of
marine mammals, where take is defined as “to harass, hunt, capture or kill, or attempt to harass,
hunt, capture or kill.” (Marine Mammal Populations and Ocean Noise, 2005). The NRDC sued
the Navy for not complying with environmental regulations, including NEPA, in 2005 in NRDC
v. Evans. The court ruled on the side of the NRDC, stating that no one, not even the United
States military, is above the law.
However, the trouble continued in 2006, when the Navy stated it would conduct fourteen
training operations that would rely on the use of active sonar between 2007 and early 2009, right
off the coast of Southern California. At first, the Navy forwarded its plan to the state coastal
commission for review. However, the Navy failed to include its use of the sonar and claimed that
the project would have no impact on the coast or marine life. The 9th U.S. Circuit of Appeals in
San Francisco did not approve the project. In response, the Navy went to the Justice Department
for a formal exemption from the Marine Mammal Protection Act. The Justice Department
petition argues that ruling by the 9th U.S. Circuit Court of Appeals jeopardizes the Navy’s ability
to train the Marines for service in wartime (Buck and Calvert, 2007).
The three acts of Congress most relevant to regulating and protecting marine mammals
from exposure to anthropogenic noise are NEPA (1969), the MMPA (1972), and the ESA (1973)
(Marine Mammal
Populations and Ocean Noise, 2005). NEPA, the MMPA, and the ESA all limit
or prohibit the use of certain activities that could potentially harm marine mammals. Most
notably, the MMPA established a moratorium on the “taking” of marine mammals in U.S. waters
and by U.S. citizens throughout the world’s oceans (NOAA Fisheries: Office of Protected
Resources). These acts signify the management approach of Mazmanian and Kraft’s Epoch I and
demonstrate important tools used in Dryzek’s “Administrative Rationalism”
discourse. Mazmanian and Kraft's Epoch 1 focuses on strict environmental regulation. An
administrative and regulatory legal system is considered essential to ensure that people comply
with federal and state regulations (Mazmanian and Kraft). Similarly, Administrative
Rationalism, proposed by Dryzek, revolves around centralized power and government control
(Dryzek). These acts demonstrate a command-and-control approach to regulation and are
therefore characteristic of both Epoch 1 and Administrative Rationalism.
Legal and Ethical Implications
According to the United States Code, Title 10, Section 5062, which provides legal
guidance pertaining to the Navy’s “composition and functions,” the Navy is “responsible for the
preparation of naval forces necessary for the effective prosecution of war except as otherwise
assigned and…for the expansion of the peacetime components of the Navy to meet the needs of
war” (U.S. Code Collection).
Title 16, Section 1362, an amendment to the MMPA added in 1978, calls for an
“international discussion to advance understanding of cetacean life (U.S. Code Collection). The
provision specifically states that “It is the sense of the Congress that the President should convey
to all countries having an interest in cetacean sea life the serious concern of the Congress
regarding the continuing destruction of these marine mammals and should encourage such
countries…to cooperate in establishing an international cetacean commission to advance
understanding of cetacean life and to insure the effective conservation and protection of
cetaceans on a global scale” (Cornell Legal Institute, 1978). The incompatibility of these laws
alludes to a larger conflict that arises from attempting to negotiate political, ecological, ethical
and economical interests.
National security factors significantly into the equation. It is the duty of the United
States’ military to protect and defend. There are certain situations in which it may be necessary
for the military to abide by different laws than the civilian population. However, this cannot be
the case all of the time. Exempting the military from the laws of this country creates loopholes in
the judicial system that the United States was built upon.
Captain JP Luster, Senior Counsel (Fleet & Operational Environmental Law) Office of
the Assistant Secretary of the Navy (Installations & Environment), claims that the Navy has
recognized the need to study behavioral changes in addition to strandings; however, policy
makers should be wary of the science that emerges from federally funded studies because thus
far the findings have been radically inconsistent. In NRDC vs. England, the NRDC and other
NGOs filed a complaint against Gordon R. England, the Secretary of the Navy, and the United
States Department of the Navy, challenging the Navy’s testing and training with active sonar
systems.
The Cetacean Community versus the Navy: Negotiating Ethical Concerns and Regulation
in a Management Framework
It is difficult to study the marine environment, and unethical to conduct experiments
exposing marine life to sonar, although such experiments might yield a more conclusive
summary of data regarding the effects of exposure to LFAs. NMFS can authorize a permit for
“takes” of marine mammals to scientific researchers and therefore probably such experiments
have been conducted already. Data collection relies heavily on self-reports, which is a flawed
mechanism. This issue would fall into the category of problems that Garrett Hardin refers to as
the "no technical solution" problems (Hardin).
Dividing the ocean into zones and areas, as done so in the United Nations Convention on
the Law of the Sea (UNCLOS), is one way of managing the world’s oceans. However, migratory
marine species are not likely to respect these artificial boundaries. The migratory behavior of
cetaceans makes it essential to establish an international governance mechanism for dealing with
mitigation and enforcement. Although there are international treaties that address anthropogenic
noise pollution, these agreements are non-binding (Andrews, 2007).
It is also important examine the role of Non-Governmental organizations. One NGO that
has played a key role in this controversy is the NRDC, who took the lead in filing a complaint
against the United States Navy. Other major NGOs, such as Greenpeace and the World Wildlife
Fund, have made substantial contributions by introducing campaigns to inform the public about
anthropogenic noise. By raising awareness of the issue and lobbying Congress for regulatory
action, NGOs become key actors capable of creating institutional change (Andrews, 2007).
Our Recommendations:
(1) International coordination: Given that the oceans are a global commons.
(2) Composition of a transparent knowledge database: so that managers have access to the same
science when making governance decisions
(3) Mitigation: For example, monitoring for marine mammals before conducting training
exercises that use active sonar.
(4) Research: Federal money should be used to study behavioral effects, indirect effects and
potential effects of active sonar (whereas the focus of prior research has been more specific and
focused on mortality).
Ideally, adopting an adaptive management approach would help resolve this by allowing for the
incorporation of information into the management system through feedback and flexibility.
Implementation of an adaptive management strategy relies on effective and honest monitoring
and reporting, which should, as has been the case in this controversy, the role of NGOs
(Marine Mammal Commission).
Conclusion
Even though the Navy will continue to conduct training exercises using SURTASS-LFA,
the system will not be deployed within 12 nautical miles of any coast. Mass strandings are visual
and poignant events that are used by the media and NGOs to promote public awareness and
involvement. Because the operations will be offshore, and therefore far removed from human
populations, public observation and interest in the controversy may decline (NOAA Fisheries:
Office of Protected Resources).Fewer mass strandings, however, does not necessarily mean
fewer deaths. Unfortunately, other types of mortalities and causalities are far less observable and
therefore often go unnoticed and overlooked. Because marine mammals are a highly valued
category of species the public will serve as an important group of actors in the implementation of
a regulation strategy.
Governmental regulation has proven a difficult method of protecting whales in the open
ocean from the navy’s sonar. While many people share a concern for the animal’s well being,
there is also a need for the preparation practices of the U.S. Navy to ensure national security.
With the United States at war the controversy has become extremely debated because many
believe that the stakes are too high to risk the Navy discontinuing its use of sonar. The rulings
involved in the court cases are also significant because they will set a standard for how strictly
the military must abide by environmental laws in the future.
Works Cited
Andrews, Helen. "Regulating Ocean Noise: a Collaborative and Creative International
Approach." Social Science Research Network. 2007.
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1095021>.
Buck, Eugene H., and Kori Calvert. "Active Military Sonar and Marine Mammals: Events and
References." CRS Report for Congress. 12 Feb. 2007.
<http://www.fas.org/sgp/crs/weapons/RL33133.pdf>.
Dryzek, John S. The Politics of the Earth: Environmental Discourses. Oxford UP, 2005.
Department of the Navy. "SURTASS LFA." <http://www.surtass-lfa
eis.com/KeyFacts/index.htm>.
Hardin, Garrett. The Tragedy of the Commons. Science., 1968.
Giuliano, Jackie. "Naval Sonar: the Shot Heard 'Round the World." <http://www.ensnewswire.com/ens/sep2002/2002-09-27g.asp>.
Hildebrand, John. "Impacts of Anthropogenic Sound on Cetaceans." 2005. Scripps Institution of
Oceanography. <http://cetus.ucsd.edu/projects/pubs/SC-56-E13Hilde.pdf>.
Inkelas, Daniel. "SECURITY, SOUND, AND CETACEANS: LEGAL CHALLENGES TO
LOW FREQUENCY ACTIVE SONAR UNDER U.S. AND INTERNATIONAL
ENVIRONMENTAL LAW." The George Washington International Law Review. 2005.
Kaufman, Marc. "Navy Drops Criticized Sonar Test Off New Jersey." Washington Post.
<http://www.acousticecology.org/oceanlfasarchives.html#Anchor-47857>.
Loverock, Kelly. "Pain in the Ear: US Navy Sonar System Threatens Whales." 22 Mar. 2002.
<http://goliath.ecnext.com/coms2/summary_0199-1541400_ITM>.
Marine Mammal Commission. “Marine Mammals and Noise: A Sound Approach to Research
and Management.” Mar 2007.
<http://www.mmc.gov/reports/workshop/pdf/fullsoundreport.pdf>.
Marine Mammal Populations and Ocean Noise: Determining When Noise Causes Biologically
Significant Effects. Committee on Characterizing Biologically Significant Marine
Mammal Behavior, National Research Council. 2005.
Mazmanian, Daniel A., and Michael E. Kraft. Toward Sustainable Communities: Transition and
Transformations in Environmental Policy. MIT P, 1999.
NOAA Fisheries: Office of Protected Resources. "Surveillance Towed Array Sensor System
(SURTASS) Low Frequency Active (LFA) Sonar."
<http://www.nmfs.noaa.gov/pr/acoustics/surtass.htm>.
National Oceanic and Atmospheric Administration (NOAA). 2002. "Taking and Importing
Marine Mammals; Taking Marine Mammals Incidental to Navy Operations of
Surveillance Towed Array Sensor System Low Frequency Active Sonar; Final Rule."
<www.nmfs.noaa.gov/prot_res/readingrm/MMSURTASS/lfasonar_fr02.pdf>.
"NRDC. V England and US Department of the Navy." 2005.
<http://www.anon.org/documents/lawsuit_051019.pdf>.
"U.S. Code Collection 5062." Cornell University Law School: Cornell Legal Information
Institute.. <http://www.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00005062----000.html>.