What does it mean? How will this ruling affect the ongoing debate as the Navy rolls out its regional EISs to govern sonar training in offshore ranges around the US coastlines and Pacific ocean? It’s interesting to note that the Navy did not appeal two aspects of the lower courts’ safety measures: establishing a 12-mile coastal buffer and avoiding a key biologically rich area in the offshore California range that this case concerned. A key issue in the EIS process is shaping up to be the Navy’s reluctance to set any areas off limits for sonar training; some observers speculate that the Navy’s hard line on this in draft EIS’s is designed to give them room to “give” a bit here in final negotiations with regulators and environmental advocates. It is also worth noting that the Navy did not appeal additional safety measures that were imposed by a Hawaiian court at nearly the same time as this California court made its decision;it appears that the California approach, which imposed shut-downs at larger distances (rather than simply reducing power gradually as whales came closer), and ordered mandatory power-downs in surface duct conditions whether whales were present or not, was too absolute for the Navy to accept, while the Hawaiian approach, which called for gradual shifts of operational procedures only when whales were observed, was deemed less disruptive to Naval training needs. Of course, the underlying question is whether nearby whales will be seen; the more stringent Californian measures were aimed to protect deep-diving beaked whales, which are rarely seen at the surface. A key point in the Supreme Court decision, and indeed, the Navy argument, was that the mere “possibility” of harm to whales (especially ones that are difficult to find and are rarely present), does not justify disruption of Naval training, despite the fact that in some cases, deaths have occurred. (The Navy counts six such incidents involving a total of a few dozen whales; environmentalists suspect sonar as a factor in up to twenty incidents since 1996, and suggest that beachings represent a small proportion of likely mortality). Indeed, Chief Justice Roberts, writing for the majority, stated that even if some harm to whales was more clearly known to be occurring, that the Navy’s need for training would still outweigh this harm. There may be an emerging consensus that is close to the interim rules imposed by the Appeals Court in this case: setting more stringent safety measures, while giving Naval commanders leeway to continue sonar transmissions if the situation warrents. This approach seems to have allowed the Navy to successfully complete the first 13 of the 14 planned training missions off California, and, it is at the root of a long-term agreement between NRDC and the Navy that is currently governing deployment of the low-frequency active sonar system in the Western Pacific. 

As Joel Reynolds of NRDC said after the Supreme Court ruling, “We’ve seen a definite change in the level of attention paid to environmental impacts on the part of the Navy. They are now in the process of completing environmental impact statements for planned sonar activities, not just off southern California, but off the southeast coast, Hawaii, and off the Washington coast. We’ve seen significant progress.” In the case at hand, it may be that the California courts simply went a bit too far in pushing the Navy; this is, in essence, the meat of the argument made by 7 of the 9 Supreme Court justices, whose opinions question several specific aspects of the lower court’s consideration of balancing the costs to training and the environment. We might take heart at the place where the Navy drew the line in its appeal, though the early EIS drafts suggest some of these debates will continue for another round (specifically, the Navy continues to resist putting any areas off limits, and to call for relatively small safety zones). It is clear that the Navy is, indeed, working on several fronts to learn more about the specific ways that sonar affects marine life, and that there are those in the Navy who appreciate the ambiguities in the current science and are open to constructive dialogue. And while the rhetoric on both sides can get rather absolute, it is likewise clear that environmental advocates are genuinely seeking a balance that allows Navy training to proceed, while minimizing dangers to marine life. Though the push and pull has often been painful for both environmentalists and the Navy, there is little doubt that a more healthy balance is now within reach. 

• To learn more about current deployment of both mid- and low-frequency active sonar, and to review the history of this issue over the past five years, see the AEI Special Report: Active Sonars.
• To dig deeper into the specifics of the Navy/NRDC talking points on sonar (including how many whales have died, behavioral changes, the Navy’s much-touted “29 Safety Measures’ and the impact of additional safety measures on training readiness), see the AEI Fact Check: Navy/NRDC Sonar Debate.
• And, for recent AEI coverage of Navy sonar news (including details on the Supreme Court case) and research related to active sonars, see our blog/feed AEI News.org Sonar Entries.