After more than a decade of losing court battles, the U.S. Navy still refuses to fully embrace the idea that whales and other sea creatures should be protected during Navy training exercises, says Joel Reynolds, senior attorney for the Natural Resources Defense Council.
But the blame cannot be placed entirely on the Navy, Joel says in a blog entry he wrote for the Huffington Post.
“In fact, much of the blame lies with the government regulatory agency whose mandate it is to protect our oceans,” he writes. “It lies with the failure of the National Marine Fisheries Service to do its job.”
Joel has been at the forefront of the legal effort to get the Navy to change its ways — and the effort has been successful to a large degree. At least we now have a much greater understanding about the effects of sonar on whales and other marine animals. Legal challenges forced the Navy to acknowledge that it didn’t really know what damage its activities were doing to the oceans. The result was to develop studies, which turned out to provide some unwelcome answers.
Joel’s latest frustration comes this week in the wake of new authorizations by NMFS to sanction Navy activities found to be unacceptable by the U.S. Ninth Circuit Court of Appeals.
Joel’s life story and that of Ken Balcomb, who I call the dean of killer whales in Puget Sound, are described in intriguing detail in the book “War of the Whales” by Joshua Horwitz. The book documents their personal and legal battles to hold the Navy accountable for its impacts on whales.
In January 2015, I reviewed the book (“My take on the book…,” Water Ways, Jan. 10, 2015), and I also interviewed the author for his inside story (“A discussion with author Joshua Horwitz,” Jan. 11, 2015).
The Navy would never have found itself on the losing side of these sonar lawsuits if the National Marine Fisheries Service (sometimes called NOAA Fisheries) had been doing its congressionally mandated job of protecting marine mammals, Joel says. For the agency, that would mean approving “take” permits only when the Navy has done its best to reduce the risk of injury during training exercises — which everyone agrees are important.
“Rather than exercising the oversight required by law, the Service has chosen in effect to join the Navy’s team, acquiescing in the omission of common-sense safeguards recommended even by its own scientific experts,” Joel writes in his latest blog post.
After reading his post, I asked Joel by phone yesterday what it would take to get the National Marine Fisheries Service on the right track.
“I don’t have an easy answer for that,” Joel told me, noting that he recently held a related discussion with Sylvia Earle, renowned oceanographer and formerly chief scientist for the National Oceanic and Atmospheric Administration.
“She is very familiar with the problems of NMFS,” Joel said. “She said NMFS is an agency responsible for killing fish.”
That said, the agency has a lot of dedicated researchers and experts who know what needs to be done, especially at the regional level. But they are hamstrung by federal politics and by budget limitations.
“The Pentagon is essentially able to dictate every part of government,” Joel said. “The financial implications are very real, because the military is so powerful. If NMFS gives them trouble, they call their contacts on Capitol Hill, and pressure is brought to bear.”
The Navy has spent decades operating at its own discretion throughout the world’s oceans. The notion that another federal agency or some upstart environmental groups should limit its activities just doesn’t sit well among established Navy officers.
The problem is so entrenched in government that any resolution “is going to take some focused attention under the next administration,” according to Joel.
If Hillary Clinton is elected, Joel said he might look to John Podesta to untangle the mess. Podesta served as chief of staff under President Bill Clinton and was instrumental in opening up long-held but arguably unnecessary government secrets. He currently serves as chairman of Hillary Clinton’s campaign.
“John Podesta understands these things,” Joel told me. “If we can’t get him (to do something), we can’t get anyone. I think it would take a reorganization. The way NMFS is set up, they are in the business of authorizing ‘take’ instead of issuing permits based on the protections that are needed.”
Joel wasn’t clear how a regulatory agency might be organized to hold its own against the Navy, but the idea should be on the table, he said. Until then, the NRDC and other environmental groups will continue to battle in the courts, where judges are able to use some common sense.
Meanwhile, NOAA has developed an “Ocean Noise Strategy Roadmap,” which promises to find ways to control harmful man-made noise. The roadmap is based, in part, on scientific studies about the hearing capabilities of marine mammals. Review my Water Ways post on the “draft guidance” Water Ways, March 26, 2016.
These steps have been encouraging — at least until this week when NMFS issued letters of authorization for the Navy to keep operating under its 2012 plan, which the Ninth Circuit Court of Appeals had declared a failure to meet requirements for the “least practicable adverse impact.” (Read the opinion.)
The agency chose to move ahead because the court had not yet issued its mandate — a formal direction to a lower court — by the time the letters of authorization were issued.
“The Navy has a robust and practicable monitoring and mitigation program that we believe is very effective in reducing the likelihood of injury,” according to an explanation from NMFS.
Check out Ramona Young-Grindle’s story about this latest finding in yesterday’s Courthouse News, which includes these further comments from Joel:
“We are astonished to see an LOA issued in the wake of the court of appeals’ decision that the LFA (low frequency active sonar) permit is illegal. NMFS is entrusted under federal law to enforce the Marine Mammal Protection Act for the benefit of marine mammals — not for the convenience of the Navy. This capitulation to the Navy’s request to continue ‘business as usual’ under a permit determined by a federal court to be illegal is outrageous.”