I agree that there is a public and obviously a military interest to conduct certain military exercises, but what about the public interest in protecting the whales. The U.S. Supreme Court ruled today that “the US Navy can continue to use long-range sonar in exercises off the California coast, dismissing arguments that the practice was harmful to whales.”

Furthermore, Chief Justice Roberts did not believe that evidence exists to show that certain types of sonar can distress cetaceans and result in barotrauma, but there is evidence that whales are being harmed by certain types of sonar that is being used by the Navy—especially data regarding the stranding behavior of beaked whales. However, the Chief Justice chose to ignore the evidence and claimed that a lower California court’s holding went too far, but certainly the U.S. Supreme Court’s decision went too far, because the Navy should be required to do more in order to mitigate harm.  I previously wrote here about certain types of sonar interacting with marine mammals:

There is strong evidence that the use of low- and mid-frequency active sonar may adversely harm marine mammals by causing injury through some combination of barotrauma, hemorrhaging, stranding, and trauma. For example, deep-diving pelagic cetaceans like the Cuvier’s beaked whale (Ziphius cavirostris) rarely strand en masse. When strandings of such deep-diving marine mammals do occur they are associated with a “meaningful proximity of military [maneuvers].” It would be interesting to discuss the possibility of predation on injured whales that suffer acoustic induced trauma before they become stranded.

The lower courts did make attempts to allow military exercises, which may harm whales by providing that: “During a ‘critical point’ in a training exercise, the Navy may use the sonar at a lower decibel level even when mammals are spotted within a mile of the ship” instead of powering “down the sonar [completely] whenever [marine] mammals came within 1.25 miles of a ship.” So why does the Navy get to have its cake and eat it too? Certainly, the Navy could be doing more. The battle between the Navy and environmentalists and Chief Justice Roberts and the environmentalists, seems to be one that’s ideological. Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined Chief Justice Roberts in the majority opinion.  Too bad Justice Anthony M. Kennedy did not join the dissent to make a majority. From the Los Angeles Times:

Chief Justice John G. Roberts said the Navy needs to train its crews to detect enemy submarines, and it cannot be forced to turn off its sonar when whales are spotted nearby. “The public interest in conducting training exercises with active sonar under realistic conditions plainly outweighs” the concerns voiced by environmentalists, he said for a 5-4 majority.

Roberts faulted judges in California for “second-guessing” the views of Navy leaders. “Where the public interest lies does not strike us as a close question,” he said.

Roberts also questioned whether whales have indeed been harmed by sonar. He said the Navy had been operating off the California coast for 40 years “without a single documented sonar-related injury to any marine mammal.”

The Natural Resources Defense Council and other environmental groups strongly disagreed. They say studies conducted around the world have shown that the piercing underwater sounds cause whales to flee in panic. These studies said some whales have beached themselves and have shown signs of bleeding in their ears as a result of high-powered sonar.

In case history, the Natural Resources Defense Council had used the Navy’s own evidence that suggested certain types of sonar are harmful to marine mammals, particularly beaked whales. From the Los Angeles Times:

They relied heavily on the Navy’s own studies to show the probable harm to marine mammals, including the vulnerable beaked whale.

U.S. District Judge Florence-Marie Cooper agreed with the NRDC that use of the mid-frequency sonar would create a “near certainty” of harm to the mammals. In January of this year, she handed down an order that limited the Navy’s use of sonar when marine mammals came within 2,200 yards of a vessel. She said sonar could not be used with 12 miles of the coast, nor near the Catalina Basin, where whales congregate.

Navy leaders took particular exception to the requirement to power down the sonar whenever the mammals came within 1.25 miles of a ship.

.       .       .

Richard B. Kendall, a Los Angeles lawyer who represented the NRDC, pointed out that the justices had recently rejected a similar claim from the administration that the military’s need to hold “enemy combatants” at Guantanamo Bay trumps the detainees’ right to go to court.

“We expect that the Supreme Court will again hold that the military must obey our nation’s laws, including the National Environmental Policy Act, and reinforce the message that the Navy should train using sonar, but train responsibly so that it causes the least possible harm to whales and other marine life,” Kendall said.

The high court will hear arguments in Winter vs. NRDC in the fall.

Image Found Here

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