I appreciate the managing editor of Oceanus (Lonny Lippsett) posting the magazine's recent article on the Supreme Court ruling on the US Navy mid-frequency sonar case (http://www.whoi.edu/oceanus/viewArticle.do?id=56252§ionid=1000, posted March 30). I might otherwise have missed this article, which offers its subscribers an inaccurate summary of the policy and legal aspects of the ocean noise/military sonar debate. To provide MARMAM readers with another perspective on this topic, I offer the following comments.
From the opening paragraph, there appears to be a misunderstanding about why this particular case "rose to the highest court in the land." Those who brought the case against the proposed use of active mid-frequency sonar in US Navy training exercises - the environmental advocacy organization Natural Resources Defense Council (NRDC) and its co-plaintiffs - and their allies on the ocean noise issue, including my organization The Humane Society of the United States/Humane Society International (HSUS/HSI), agree whole-heartedly that "not every issue is best settled in court." Almost without exception, every effort is made to avoid lawsuits, because an unfavorable ruling is never desirable, but sometimes there is no other option.
The parties involved in the Supreme Court case sought for years to find common ground on mid-frequency sonar. Among other efforts, they participated for two and a half years in a multi-stakeholder process coordinated by the US Marine Mammal Commission (MMC) (http://www.mmc.gov/reports/workshop/pdf/soundFACAreport.pdf <http://www.mmc.gov/reports/workshop/pdf/soundFACAreport.pdf> ). Despite these efforts, the Navy eventually decided that it was unwilling to adopt certain precautionary mitigation measures during exercises off the coast of California, even though it had implemented most of these same measures in previous exercises. It also refused to adopt mitigation requested by the California Coastal Commission. This intransigence led to the original lawsuit in California district court - legal action was a last resort. The plaintiffs prevailed in the lower courts and it was the defendant - the Navy - that chose to appeal to the Supreme Court. Another misunderstanding is that science was "left out of the debate." Scientists (including at times WHOI researchers Dr. Darlene Ketten and Dr. Peter Tyack, who were quoted throughout the Oceanus article) participated in the MMC committee, provided affidavits in the court cases, were consulted during the years of negotiations, and/or participated in many of the meetings, workshops, and committees leading up to the district court case. The proposed mitigation measures that the Navy sought to avoid by going to the Supreme Court were based largely on peer-reviewed science and, when the science was not available, on a precautionary approach. I found the implication in the Oceanus article that science has been given short-shrift in the debate on ocean noise to be inexplicable, as science and the law are the foundation on which the entire debate rests. When Dr. Ketten correctly states, "The ruling was procedural; the case did not hinge on science," she seems to imply that the ruling was mis-focused, even though most legal experts considered the focus on procedure to be a positive outcome for marine life, given the potential for the Justices to have addressed other aspects of the case with far more damaging repercussions for the environment. Dr. Tyack then says, "Neither side wanted to discuss research that has developed new methods to better protect whales that will still meet the Navy's training requirements, and I'm not quite sure why." Both statements suggest that neither side cares as much about the science as it should. However, both sides of the court case had been discussing new research methodologies and results for years - the disagreement arose from how to apply that new information to actual mitigation during Navy training exercises. Disagreeing on practical, real-time, cost-effective, and for that matter politically viable application of research results to management is not the same as disagreeing on (or ignoring) the research results themselves, a fine point that many scientists who become involved in policy debates find difficult to grasp. Contrary to the implication that science was ignored in the court cases, in fact the science of ocean noise - including much of the work done by Drs. Ketten and Tyack on this topic in the last few years - has been promoted and funded as a result of the insistence of watchdog organizations like NRDC, HSUS/HSI, and our allies that the Navy follow the law. The Oceanus article seemed to imply that environmental lawsuits have obstructed research. On the contrary, much new and vital research in the field of marine acoustics and on the impacts of ocean noise on marine life has been conducted as the result of these cases, to answer questions posed in and by the courts. The continued failure by some in the scientific community to recognize that in fact the public pressure brought to bear on policy makers and federal funding agencies by environmental advocates has resulted in greater funding for research is deeply disappointing. Some examples include the funding provided for both the Acoustic Thermometry of Ocean Climate Marine Mammal Research Program in 1995 and the Low Frequency Sound Scientific Research Program in 1997. The same is true, at least in part, of the Navy's funding for much of the research on "a recent technological invention - digital tags that can record whales' behavior and the sounds in their environment." As noted in the article, Dr. Tyack is a leader in using D-tags for research on impacts of noise on marine mammals. But the Navy might have never funded this work without the scrutiny it received after environmental advocates raised the profile of military sonar as a threat to marine mammals. I would also argue that legal action to improve sonar mitigation has indirectly increased funding for marine mammal research generally, by motivating the Navy and others to meet the standards of the various relevant environmental laws - another fine point often missed by some researchers, even those who benefit from this indirect effect. I am unsure what the scientists at WHOI think is an appropriate response when illegal activity is discovered. If the Navy or other sound producers are breaking the law, I hope they feel something should be done about that. If they don't like the laws, they can try to change them - this is certainly a tactic the Navy used when it successfully lobbied to have the Marine Mammal Protection Act amended to include a military exemption. However, if they think the law is worth enforcing, then they should consider whose job it is to ensure that enforcement. This job isn't always performed adequately by the government, as we all no doubt now know after years of government wrong-doing in other arenas, and as much of the history of environmental and wildlife protection in the United States makes clear. One of the primary functions of environmental advocacy organizations is to monitor and push for the enforcement of environmental laws. I work with several international organizations that envy me for living in a nation of strong environmental statutes and procedural transparency, where the government can be taken to court for failing to enforce the law. The implication of the Oceanus article that making the legal system work to strengthen protections for marine mammals is a liability for research is rather disturbing. The article then goes on to focus on the disagreement over whether sonar should be powered down when whales are 1000 m from the sound source or 2000 m. This point only became contentious before the original legal action was filed because regulators must come up with some tangible guidelines or requirements for sound producers to follow, even if these requirements are at times somewhat arbitrary. Science is always a step or two (or more) behind management needs - yet another point some scientists don't seem to grasp well. Dr. Tyack actually states that he believes that "in five years, researchers will know enough about beaked whale behavior in response to sonar to allow the Navy to plan missions that have minimum impact on whales." But he does not offer any solutions for what regulators, environmental advocates, the courts, the Navy, and for that matter the marine mammals are supposed to do in the meantime. Contrary to Dr. Tyack's statement that the "inadequacy of the current observation methods and the existence of better ones never came up in the court arguments," the inadequacy of visual monitoring was, in fact, a key point in the original legal action in the California district court. Environmental advocacy organizations have been pushing for more reliable methods of monitoring for years, including using passive acoustic methods, but also emphasizing that all current methods still have gaps and problems, underlining the need for precaution during their ongoing development. Thus, the courts have previously restricted the Navy from using important marine mammal habitat and have required it to improve or develop better monitoring techniques. Drs. Tyack and Ketten are quite critical of non-scientists making exaggerated claims about scientific aspects of this issue. They criticize the "emotional" tone of arguments made in the Supreme Court case by the environmental groups, focusing on minor points such as whether it's appropriate to compare the loudness of sonar to the loudness of some number of jet engines. Setting aside the validity (or not) of their concerns regarding how science-based arguments are used or misused by non-experts in the public debate over ocean noise (by all stakeholders), the irony of two scientists with no legal expertise commenting on the nuances of a Supreme Court case seems to elude them (and the author of the Oceanus article). Drs. Tyack and Ketten are also skeptical of the hypothesis that beaked whales suffer from decompression sickness, but in fact the researchers studying this condition in beaked whales that have mass-stranded in association with sonar exercises say only that these symptoms are decompression sickness-like - they resemble the "bends." (This differentiation is consistently overlooked by the mass media; the Oceanus article also fell into this trap.) There are a number of papers now published on this topic, from various researchers, and while it is valid and even laudable to debate and critique this emerging body of work, it is inappropriate to dismiss it out of hand. I was also extremely disappointed to see Dr. Tyack bring up the specter of bycatch being a far greater threat to marine mammals than ocean noise. This red herring argument was first raised by representatives of the oil and gas industry on the MMC committee and it is as specious now as it was then. For example, one could counter-argue that cars kill millions of animals around the world. Compared to this, trophy hunters kill a small number of animals - but these casualties may be tigers, cheetahs, or other endangered species. We should not ignore the smaller number to focus solely on the larger in this case and we shouldn't in the case of ocean noise. Killing one Perrin's beaked whale, a species that has only recently been discovered off the coast of California and about which we know almost nothing, in a sonar exercise could indeed be a significant loss. Also, while we may have a reasonable idea of how many marine mammals die as bycatch in fishing gear every year, we have no idea how broad the reach of ocean noise is when it comes to disturbance, disruption, harassment, stress responses, and other sub-lethal and/or non-lethal (but nevertheless biologically significant) impacts. Immediate mortality may be the obvious impact, but it may in fact be the smallest impact in the case of ocean noise if, for example, stress responses to exposure to ocean noise result in long-term reductions in reproductive rates or shortened lifespans, or disturbance forces animals into marginal habitats. If ocean noise is more harmful than bycatch, the harm will no doubt be more insidious and difficult to detect. Indeed, comparing fisheries bycatch to sonar deaths may be more like comparing the number of people killed in car accidents and those killed from smoking. Unlike fatal traffic accidents, smoking does not immediately kill; it took many years of research with smokers to establish a causal link to mortality. It is only because the smokers' database reached a critical sample size that science could finally estimate the true impact of smoking on humans; until we had this information, we underestimated the impacts for decades. (It did not help that the tobacco lobby kept this information suppressed as much as it was able and resisted acknowledging the results of research funded by others.) The same may prove true in the case of marine mammals and military sonar/ocean noise. The article ends with Dr. Ketten saying, "We are very close to answers on what animals like beaked whales hear and how they respond to sound. If all sides devoted their resources to research rather than to lawsuits, we could get some answers, but without them, the lawsuits will continue." Dr. Tyack then says, "It's ironic to think it's the human squabbling that is preventing the science from informing the policy." It was these final statements that truly motivated me to formulate this rebuttal. It is encouraging that Dr. Ketten thinks we are "very close" to answers on what to do about the impacts of sonar on beaked whales, but the whales don't have the luxury of waiting. One is not a "little" pregnant or "mostly" dead. When sonar kills a beaked whale, "very close" doesn't help. Yes, we need more research and yes, we need better ideas for mitigation, but in the meantime, these whales need protection. Adaptive management - mitigation that is initially precautionary, but that may eventually be proved unnecessary or ineffective and is revised as new scientific information becomes available - is better than no management or clearly inadequate management. I believe the latter applies to the sonar situation, as beaked whales (and some other species) continue to strand and many more marine mammals continue to react in various negative ways when exposed to sonar. To me, this demonstrates clearly that what the world's navies are doing is not yet good enough. Environmental advocates have put forward a number of precautionary ideas for additional mitigation - not the least of which is simply to avoid important marine mammal habitat - but most have been unacceptable to the US Navy. As for Dr. Tyack's statement, I would agree that it is human nature that is preventing the science from informing the policy. However, as I noted above, it is not the "squabbling" in court that is at fault. If scientists who become involved in policy development truly believe that policy makers would "do the right thing" if only they had the correct answers, then they have been singularly inattentive during their time in the policy arena. Politics prevents science from informing policy, not lawsuits or misstatements of fact. Even with all the correct answers, if a policy maker has a constituency that feels that the required action would be too costly or inconvenient, then he or she can simply ignore the science, or spin or otherwise misuse it. This is not the first time scientists have implied that research is the most important aspect of conservation - that only research can provide the correct answers and that without the correct answers, conservation will be inevitably and irretrievably hindered. Dr. Ketten even suggests resources should be devoted exclusively to research. The degree to which this belief ignores the Precautionary Principle is truly distressing. In addition, recent history in the United States regarding the denial of climate change is informative. Science played a minor role for years: most policy changes were the result of public attitudes. In a paper celebrating the contributions of Dr. Lee Talbot (the primary author of the US Marine Mammal Protection Act and several other key environmental laws in the United States), Dr. Stephen Kellert notes that "altering people's values and ethics towards nature, rather than being impractical and idealistic, is a highly relevant strategy for advancing significant change in environmental policy." The most effective way to ensure that policy makers make the right decisions when it comes to conservation - or anything, for that matter - is for all stakeholders to work together - or at least to stop obstructing one another. In the debate on ocean noise, the environmental advocacy community respects the need for the military to protect national security, for the oil and gas industry to supply our energy, and for shipping to transport goods. We recognize the value and importance of research and rely on it (and on partnerships with those in the research community) for all of our work. Clearly research is essential - having the "right" scientific answers makes it far more likely that the policy will be "right" too. But it is watchdog groups like NRDC, HSUS/HSI and others, coordinating with equally concerned and politically savvy allies (which may include researchers), who keep the politics from completely overwhelming and undermining environmental regulation. And it would be nice if those in the research community who choose to get involved in the policy arena would reciprocate by recognizing this too. _______________________________ Naomi A. Rose, Ph.D. Senior Scientist International Policy Humane Society International 700 Professional Drive Gaithersburg, MD 20879 USA Ph 301 258 3048 Fax 301 258 3082 Eml nrose@hsi.org http://www.hsi.org <http://www.hsi.org> http://www.hsus.org <http://www.hsus.org/> NOTICE: This message is intended for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential, and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent of the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify me immediately at the telephone number above. Thank you.