[MARMAM] Oceanus article posted March 30

Naomi Rose NRose at hsus.org
Mon Apr 6 10:20:35 PDT 2009

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
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


>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


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


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


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 at hsi.org
http://www.hsi.org <http://www.hsi.org> 
http://www.hsus.org <http://www.hsus.org/> 

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