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The Latest National Security Threat: Whales?

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The High Court recently made a narrow reversal of California’s Ninth Circuit regarding Navy sonar training off the Southern California Coast. The order partially overturns a California Appeals Court ruling that the Navy had to temporarily stop using its active sonar in training exercises. Concerns over harm to marine life led the group and others to sue the Navy in 2007 over the use of the technology.

The case can be claimed by both sides as a victory. The plaintiff, the National Resources Defense Council, hails the verdict as not upending the underlying ruling that the Navy most likely failed to follow federal law. In fact, 4 of the lower court’s 6 mitigating measures imposed upon the Navy were left in place.

Nonetheless, lost in the case’s arguments about irreparable harm, probability of success on the merits, and other highfalutin lawyer talk was much discussion of the physical damage to marine life caused by mid-frequency sonar. Instead, Chief Justice Roberts starkly framed this as an issue of National Security vs. whale watching. The holding gave total deference to Navy concerns with National Security. They do, after all, need to train themselves on how to use their fancy toys in order to protect America and our coastlines.

But does deference to the Navy cross the line when we are talking about the scientific impacts of sonar on marine life? Mid frequency sonar (the type of sonar at issue) can seem as loud as 2,000 jet engines to animals such as whales and dolphins. Extremely loud sonar can rupture marine mammal ear drums, cause brain hemorrhaging, and make them temporarily deaf. For many of these animals these problems lead to death, either by fatally causing them to surface too quickly or causing them to beach on the shore. By the Navy’s own estimate, the tests may permanently injure (i.e. kill) almost 600 animals, affect the behavior of 170,000 animals, and cause temporary deafness to 8,000. 

Considering that many of the marine mammals off of Southern California are on the endangered list (such as the beaked whale), numbers in the hundreds could permanently endanger the survival of a species. This wasn’t really discussed in the holding of the case. After all, equity is primarily a decision of fairness amongst human-beings, not animals.

Considering the original position of the Navy was that they can do whatever they want, the fact that the majority of the injunction was left untouched is impressive. In fact, the Navy didn’t even challenge 4 of the 6 measures imposed on it by the lower court. In its holding and its argument the case seems to be practical in scope. Hopefully these mitigating measures are sufficient and do not cause irreparable harm to native California marine life. Although whale watching might not trump national security, we definitely need to have some whales around for when their friends show up.

Ken LaMance

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