The Navy wins on sonar, not that anyone's surprised

Here's an analysis of the recent Supreme Court decision to continue allowing the Navy to use sonar in the presence of marine mammals. It's not as simple an issue as you might think.
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<i>USNS Bowditch</i>, an oceanographic survey ship in the Military Sealift Command.

Here's an analysis of the recent Supreme Court decision to continue allowing the Navy to use sonar in the presence of marine mammals. It's not as simple an issue as you might think.

The Supreme Court ruled in favor of the Navy in the sonar case, so its ships don't have to shut down their sonars when a marine mammal swims within 2,200 yards (that's a mile and a quarter) during training exercises. The Navy doesn't have to reduce sonar power during certain ocean temperature conditions, either. A California district court had imposed the limits on Navy training exercises off southern California, and the much-overruled 9th Circuit had upheld them.

Actually, this gets complicated: The district court enjoined the Navy from conducting its southern California training exercises with mid-level active (MLA) sonar until it completed an Environmental Impact Statement (EIS); the Navy appealed; the 9th Circuit remanded the case to the district court with orders to come up with something less than a total ban; the district court imposed six conditions, four of which the Navy didn't contest. This ruling concerned the only two conditions that the Navy appealed.

The Supreme Court majority — the conservative quartet of Roberts, Alito, Thomas, and Scalia, plus the predictable swing vote, Kennedy — found that anti-submarine warfare was critical to the Navy's mission — "Antisubmarine warfare is one of the Navy's top priorities," the court ruled — and that you can't detect diesel-electric submarines deep underwater unless you practice. From the court ruling: The record contains declarations from some of the Navy's most senior officers, all of whom underscored the threat posed by enemy submarines and the need for extensive sonar training to counter this threat.

Lower courts paid too little attention to the Navy's own statements of what it needed and gave too much credence to environmental groups' speculation about environmental harm.

Justices Breyer and Stevens, concurring in part and dissenting in part, noted that the Navy was going to conduct only one training exercise before it completed an EIS, and that the 9th Circuit had modified the original conditions. Breyer and Stevens thought the Navy could live with those modified conditions until it completed the EIS. But both justices agreed with the majority's main findings.

Neither Breyer nor the majority thought the lower courts had adequately balanced the Navy's stated operational needs against the speculative environmental harms. Those courts had dismissed the Navy's arguments rather cavalierly, with virtually no analysis.

Besides, the court noted that the potential harm to marine mammals was unclear. Yes, sonar can damage mammals' hearing and disrupt their behavior, but the Navy says that after 40 years of training exercises off southern California, there's no evidence of actual harm. In other words, show us the bodies, or as the Navy argued: The parties strongly dispute the extent to which the Navy's training activities will harm those animals or disrupt their behavioral patterns. The Navy emphasizes that it has used MFA sonar during training exercises in [southern California] for 40 years, without a single documented sonar-related injury to any marine mammal. The Navy asserts that, at most, MFA sonar may cause temporary hearing loss or brief disruptions of marine mammals' behavioral patterns.

Of course, marine mammals may be a bit reluctant to tell the Navy about their behavioral problems. And the Navy isn't going to give them hearing tests.

Is this all a big surprise? It shouldn't be. We're ready to kill people, not to mention imprison them indefinitely and water board them, in the name of national security. Why shouldn't we take a chance on the health of marine mammals? In "Political Science," Randy Newman urges the nation, tongue in cheek, to "drop the big one," singing, "boom goes London and boom Paree, more room for you and more room for me;" but "we'll save Australia'ꀓdon't wanna hurt no kangaroos...." You can think of the injunction that the Supreme Court struck down as a product of Randy Newman's law.

When the military tells the courts what it needs, sooner or later it's probably going to get some deference, as in this, from the court's ruling: We accept these officers' assertions that the use of MFA sonar under realistic conditions during training exercises is of the utmost importance to the Navy and the Nation.

The five majority justices concluded: The balance of equities and consideration of the overall public interest in this case tips strongly in favor of the Navy. For the plaintiffs, the most serious possible injury would be harm to an unknown number of the marine mammals that they study and observe. In contrast, forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet. Active sonar is the only reliable technology for detecting and tracking enemy diesel-electric submarines, and the President — the Commander in Chief — has determined that training with active sonar is 'essential to national security.' The public interest in conducting training exercises with active sonar under realistic conditions plainly outweighs the interests advanced by the plaintiffs. Of course, military interests do not always trump other considerations, and we have not held that they do. In this case, however, the proper determination of where the public interest lies does not strike us as a close question.

Not that anyone should have expected it to strike them as a close question. 'Save the whales and screw the Navy' might make sense in a Left Coast context, but — even in this Obama election year — not everybody sees the world that way.


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About the Authors & Contributors

Daniel Jack Chasan

Daniel Jack Chasan

Daniel Jack Chasan is an author, attorney, and writer of many articles about Northwest environmental issues.