In December, the Navy’s current five-year plan for training and testing activities around Hawaii and off the southern California coast were approved by NOAA regulators, covering the years 2014-2018. The approval authorized incidental takes of marine mammals, including both widespread behavioral changes and close-range injuries and some deaths, as a result of sound exposure from sonar and explosives, as well as ship strikes.
Immediately after NOAA’s approval, environmental organizations filed suit in federal court in Hawaii, and this week, other organizations filed suit in a San Francisco federal court (the Navy pushed back in a brief statement). It’s unclear from early press coverage how much overlap there is between the two; the Hawaii suit, led by Earthjustice, initially named just NOAA, but has been amended to also name the Navy as a defendant. The San Francisco suit, led by the NRDC, targets NOAA, charging that federal regulators did not use “best available science” and that their finding of “negligible impact” violates the Marine Mammal Protection Act.
At issue in both suits is the shockingly large numbers of animals that are permitted to be affected, amounting to nearly 10 million behavioral responses, the potential for 2000 permanent injuries (including hearing impairment), and 155 deaths over the course of five years. “This is an unprecedented level of harm,” Zak Smith, an attorney with the Natural Resources Defense Council, said. “In order to authorize these impacts on marine mammals, the service had to turn its back on the best available science.”
It’s important to note that while sonar has been the focus of most public concern, explosions during testing and training are predicted to cause most of the injuries and deaths. The Navy and NMFS consider the estimates to be extremely cautious (ie far higher than actual likely impacts) for a number of reasons; see the bullet list in this earlier AEI post for more on why.
NRDC, Earthjustice, and the other plaintiffs continue to stress that the Navy can and should limit its activities in areas and times of particular biological importance to marine species; the lack of such “spatio-temporal restrictions” has been a bone of contention for many years, and this time, as in past rounds of permitting, the Navy and NMFS determined that such restrictions would yield little biological benefit. A largely similar lawsuit filed in 2012, challenging NOAA permits for Navy training in the Pacific Northwest, ended up in a split decision, with the “best available science” ruling going against NOAA, but the large takes challenge (including the lack of exclusion zones, as well as faulty negligible impact ruling) falling short, with the court approving of NOAA’s analysis and actions.
UPDATE, 2/10/14: See this article from NRDC, outlining their reasons for this lawsuit and how it fits in with their 20-year history of focusing on ocean noise issues.