The first ruling is in from the latest round of legal challenges to Naval training permits, and it’s a split decision. You’ll need to click through to read the full post to get all the details, but here’s a preview of the conclusion you’ll find at the end:
It appears that the places that the court found NMFS falling short are in the details of how they prepare and analyze information, while the end results of the Navy activities and NMFS analysis and permits were upheld as valid. The court did not accept the plaintiff’s core concerns about the huge numbers of animals authorized to be affected (as litigated on the questions of protected habitats, mitigation measures, and cumulative impacts), deferring to the NMFS analysis that deemed even these large numbers to be acceptable, largely because most impacts are minor and temporary. The rulings that went against NMFS each appear to require simply more data analysis, which will then be fed into the same decision-making process that has been upheld as valid.
In 2012, Earthjustice, NRDC, and others challenged both the 2010 Northwest Training Range Complex permits authorizing five years of mid-frequency active sonar and explosions at sea, and permits authorizing global deployment of low-frequency active sonar through August 2017. While earlier challenges targeted the Navy’s environmental analysis—or originally, the lack thereof—and ran aground when the Supreme Court ruled the Navy has broad discretion to weigh environmental safety against national security interests, this new round of lawsuits is directed at the National Marine Fisheries Service’s regulations and permits for the activities.
In both cases, the primary focus of the challenges, at least as described in press releases, was insufficient protection of biologically important areas. For several years, NRDC and others have stressed that Navy training ranges, which stretch along nearly the entire east and west coasts of the US, contain enough area for diverse training while setting aside some seasonal or year-round exclusion zones where training is avoided due to concentrations of marine animals. Navy estimates of the numbers of animals likely to hear sonar or explosions, leading to either behavioral changes or injury, are alarmingly high, and the plaintiffs suggest that these numbers could be reduced significantly by setting some areas off limits, at least at key times. Unlike in previous challenges directed at the Navy itself, the plaintiffs did not seek any sort of injunction to halt the training exercises; rather, they asked that the court require the NMFS to revisit and revise their previous rules or authorizations in light of any deficiencies the court determined to be present.
As the NWTRC case moved into the argument phase, several specific challenges to NMFS procedures, analysis, and conclusions were raised and addressed. In a ruling issued by US Magistrate Judge Nandor Vadas in late September, the plaintiffs came away with at least a temporary win on several points, while the NMFS prevailed on several other fronts, including on the fundamental arguments about habitat protection and long-term impacts. As in previous rounds of this legal battle, it appears that the end result will be Navy training continuing pretty much as it was before any of the legal challenges began—though with detailed analysis of potential impacts continuing to be pushed into new realms by the legal challenges.
The court ruled that the NMFS had improperly failed to include some relevant studies from 2010 and 2011 when issuing a 2012 Letter of Authorization and Incidental Take Statement, two years after the initial Five-Year Regulations were issued, and so did not rely on the “best available evidence” and likely underestimated the number of animals affected by Navy activity in its 2012 permitting documents. In addition, the court ruled that the NMFS should analyze impacts not just over the five years of each planning cycle, but for a longer (unspecified) time period, because Navy training is considered to be a permanent, long-term activity. Over the next month, NMFS will file a brief describing what they see as an appropriate scope and duration of any order to change their previous documents, and the plaintiffs will file a reply; presumably, the Court will rule shortly thereafter on specific remedies.
However, the NMFS prevailed on several substantial issues, including the primary one and two important related challenges. On the central question of setting aside exclusion zones to better protect essential habitats, the court ruled that the NMFS had given such exclusions due consideration, and lawfully concluded that such exclusions would not be likely to reduce take numbers significantly. Likewise, the court ruled that NMFS determination of no significant impact did not rely on insufficient mitigation measures (primarily visual observers) in making its assessment of likely harm; rather, NMFS determined that even before mitigation measures were implemented, the numbers of animals affected and the degree of impact did not pose long-term risks to local populations.
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