The US Navy and the NRDC and its co-plaintiffs have settled a long-running lawsuit that challenged the Navy’s overall management of its mid-frequency active sonar program (this suit was separate from more high-profile challenges to specific training missions, one of which recently ended up in the Supreme Court). The resulting agreement formalizes the Navy’s recent commitment to NEPA compliance, which is by all accounts much improved since the suit was filed in 2005, and provides for increased transparency by the Navy about its sonar operations. Both parties trumpeted their glad tidings of prevailing over the stubborn demands of the other (see below), though it is far from clear how the parties will resolve continuing underlying disagreements over what degree of safety measures are necessary.  The most significant new piece of the settlement is a commitment to pursuing three lines of research of interest to both parties, most strikingly studies of stress in marine mammals.

(Details of the settlement, with analysis of the potential benefits, are below the fold)

The suit, filed in 2005 after it became apparent that the Navy’s mid-frequency sonars were responsible for several strandings of deep-diving whales, called on the Navy to conduct full Environmental Impact Statements of its sonar activities, and to implement safety measures to protect whales when sonar is in use. Before any hearings were ever held, the Navy did initiate NEPA compliance, beginning with applying for its first-ever Incidental Harassment Authorizations for a training exercise in Hawaii in the summer of 2006, and scheduling a series of EISs to cover all training ranges; the first of these were released in 2008, with the rest in the pipeline for completion during 2009 and 2010.  The Navy claims these plans were well underway by the time the suit was filed, and indeed, after the now-famous Bahamas stranding in 2000, a memo was issued by the Under Secretary of the Navy spelling out the need for NEPA compliance.  Why it took six years to kick into gear is still unclear (could the change of administrations a month after the memo was issued have anything to do with it?), but NRDC certainly feels its challenges were the driving force. 

As for safety measures, the Navy will continue to use the procedures it formally implemented in 2006 when it began receiving IHAs for sonar training, which include lookout requirements, a modest safety zone, and a set of stricter measures to be considered by on-ship commanders when in situations similar to those in the Bahamas. (The first of the draft and final EISs to be released for specific training ranges continue to use similar safety procedures.)  These procedures have been challenged on several occasions by NRDC and its co-plaintiffs, who call for larger safety zones and leaving some biologically rich areas off-limits.  The settlement creates a plan for 120-day “cooling off period” after new sonar plans are released, during which the two sides will attempt to negotiate agreements; so far, there is no indication of what, exactly, will facilitate agreement on questions that have proved intractable for the past several years.

The agreement also formalizes the Navy’s commitment to ongoing and new research into the effects of sonar on marine life.  Since 2000, the Navy has funded a slew of studies, especially examining the apparent sensitivity of deep-diving beaked whales to mid-frequency active sonars.  In 2008, the Navy spent $26 million on marine mammal research (not all of it sound-related; much of it involves population studies and other topics); over the next 3 years, the Navy will devote $15 million of its research budget to new funding in three topics of “mutual interest” to the Navy and the plaintiffs.  The research topics identified in the settlement are: zeroing in on the locations of key beaked whale populations, improving the techniques used to estimate local populations of all marine mammals, and developing techniques to assess stress levels in marine mammals.  In addition, the Navy agreed to increased transparency, releasing some “previously classified information” about its sonar program, including information that had been subject to intense dispute even during the pre-trial portions of this case, as the Navy claimed national security precluded sharing program details with the plaintiffs. 

The proposed new funding for research of stress in marine mammals could well provide far-reaching new tools with which to assess the impacts of moderate noise exposure on individuals and populations.  For several years, the question of synergistic effects has hovered on the edges of concern over ocean noise; developing clear techniques to assess the degree of noise-related stress that is caused by human activity would be a giant step toward learning whether such stress can make animals more susceptible to other, grosser stresses that they face (including toxins, food shortages, etc.).  
[READ THE SECTIONS OF THE SETTLEMENT DEALING WITH THE THREE AGREED UPON RESEARCH TOPICS]

As always, it was entertaining to listen to both sides claiming the virtuous high ground (when dealing with the same disputes for years, we have to get our kicks somewhere!).  The Navy had this to say:

“The settlement essentially adopts the long range program for environmental analysis and research that the Navy undertook in August 2005, months before this lawsuit was originally filed. The Navy will continue to implement a variety of protective measures previously developed in cooperation with the National Oceanic and Atmospheric Administration. The agreement does not require any additional mitigation measures.  ‘The Navy is pleased that after more than three years of extensive litigation, this matter has been brought to an end on favorable terms,’ said Frank R. Jimenez, General Counsel of the Navy. ‘The Navy welcomes an approach that relies more upon scientific research than litigation.'”  (translation: “Darn those darn enviros with their court cases!  We’ve always been the voice of reason and will continue to be.  The whales are safe in our hands: trust us!”

Meanwhile, NRDC put on a brave face as the agreement largely formalized what the Navy had done in the intervening years:

“After years of litigation with the U.S. Navy over its refusal to prepare environmental impact statements (EIS) for sonar training exercises, a settlement announced Saturday commits the navy to complete a schedule of full environmental reviews on major training exercises around the world…while it does not resolve disagreements with the Navy over operational safeguards required to reduce sonar’s risk to whales and other marine life, it sets in place a process for negotiation between the Navy and this environmental coalition that we hope will reduce the need for future litigation.”  (Translation: “We’re proud to say that the EIS schedule that has been publicly available for the past two years is now also included in a document that we get to sign, and we look forward to continuing to beat our heads against the Navy’s wall about how they could keep whales from dying if only they shared our commitment to common sense safety measures.”)

Sources: ENS, 1/5/09[READ ARTICLE] NRDC Press Release, 12/28/08 [READ PRESS RELEASE] Navy Press Release, 12/27/08 [READ PRESS RELEASE] LA Times, 12/28/08 [READ ARTICLE] Legal Times, 12/29/08 [READ ARTICLE] 

[See AEI Special Reports: Active Sonars and Sonar FactCheck]