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). 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.hsus.org
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