Panelists Chart Complicated Depths Between Navy Sonar and Marine Mammals
Animal activists worried that the U.S. Navy's use of sonar may be harmful to marine mammals are fighting the service's national security exemption through litigation, according to a panel of experts who analyzed the issue Nov. 4 at the Law School. Sponsored by the Virginia Animal Law Society and Virginia Environmental Law Forum, the panel consisted of David Cottingham, executive director of the U.S. Marine Mammal Commission; Naomi Rose, a marine mammal scientist with the Humane Society of the United States; and Kristen Gustafson, an attorney with the U.S. Department of Justice.
Cottingham provided a historical background for why Navy sonar testing has been permitted despite the potential threat to marine mammals such as whales and seals. The Marine Mammal Protection Act, signed under President Nixon in 1972, was a response to the abuse of marine life, including rampant commercial whaling and baby seal harvests, according to Cottingham.
"[The Act] said, basically, that you can't go in and take and taking means to harass, hunt, capture, kill, or attempt to harass, hunt, capture or kill any marine animal," he said. "So it established a prohibition and then it gave you ways to come in and get exemptions to the prohibition." These exemptions led to the idea of small-take authorizations, with which certain organizations (such as the Navy) can get an exemption from the Act, provided their underwater activities remain in a limited area, only affect small numbers of marine life, and have a negligible impact on animal behavior.
Subsequent legislation through the Department of Defense, including the Defense Authorization Act, changed some of the definitions in the Marine Mammal Protection Act. The definition of the term "harassment" was clarified to distinguish between injuring marine animals and disturbing their natural behavioral patterns.
Whether the effect of sound waves on marine animals constitutes harassment is integral to the legality of the Navy's actions. "What we are concerned about is the amount of sound an animal is exposed to, and what its hearing capabilities are," said Cottingham. Loud sounds, which carry fairly far underwater, can affect animals' behavior, mask other important sounds such as mating calls or, in rare cases, lead to loss of hearing and death.
Sonar is currently used by the Navy as a means of tracking the location and movement of both friendly and enemy submarines. There are around 300 ships deployed as part of the Navy's anti-submarine warfare force; roughly 150 of those have sonar capabilities on them, according to Cottingham.
Rose said the Humane Society and other nongovernmental organizations working on the noise pollution issue want to maintain the ocean as a place of international commerce while addressing the issues produced by noise.
Despite popular myth, most NGOs do not enjoy pursuing lawsuits to effect change. "We are choosey about when we file lawsuits," she said. "We don't want rulings that are bad. Basically, in our view, we often have governance by litigation, which is a terrible way to govern."
Rose criticized the Navy for their role in perpetuating noise pollution, disputing the idea that the Navy "is the leading steward of the environment." The Draft Environmental Impact Statement (DEIS), a scientific study on issues of noise recently released by the Navy, is fraught with problems, according to Rose.
"I'm a scientist; I'm a biologist. So I can tell you that this DEIS, just from a cursory glance, is not based on sound science," she said. "It's based on science that has been manipulated. It's one of the worst examples I've ever seen of manipulated science."
The panel concluded with Kristen Gustafson, an attorney for the Environmental and Natural Resources Division of the U.S. Department of Justice. As a member of "one of the defensive sections of the environmental division," Gustafson provided a counterpoint to Rose and Cottingham.
She described the sonar capabilities of submarines as low-frequency sonar with both active and passive components. Military sonar is necessary to detect potentially hostile diesel submarines, a key part of national security. Although the Navy received a permit for the testing of sonar, current litigation challenges every aspect of the permitting process.
Gustafson stressed the complexity of the issue. In making the DEIS, the Navy involved top institutions in biology and acoustics during its research of the impact of sonar. Sound itself is a complex science and its effects on marine life vary with such factors as animal species, sound ranges, and water temperature.
"We are really talking about the cutting edge of science on so many levels in a case like this," she said. "The laws are complicated, the science is very complicated, and I think it's a little unfair to say the [government] agencies are shirking their duties."
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