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A Whale of a Win

After decades of advocacy and action, a campaign to protect marine mammals from harmful underwater sonar finally pays off — in an appropriately big way.

So ubiquitous has the phrase “Save the Whales!” become as semi-ironic shorthand for the larger environmental movement that we can sometimes forget there are still actual whales out there in actual need of saving. But earlier today, in the U.S. District Court’s District of Hawaii, a hugely important settlement was ratified between environmental groups and the federal government to remind us that whales, along with other marine mammals, are still at risk.

At the heart of this particular case — originally brought by a consortium of environmental groups led by my own, NRDC — is the use of high-intensity sonar exercises and underwater detonations by the U.S. Navy in its training and testing activities off the coasts of Hawaii and Southern California. Such activities have been shown, in numerous studies, to have a harmful impact on whales and other marine mammals, for whom hearing is utterly essential. The daily lives of these species are governed by their highly developed sense of hearing — they use sound to communicate with one another, navigate, feed, and find their mates.

So when a sonar exercise occurs nearby, producing sound of extraordinary intensity, the effects on these acoustic creatures can be significant. Naval sonar has been shown to cause whales of some species to stop vocalizing and feeding, abandon their habitat, panic, and, under some circumstances, strand and die. For one family of species known as beaked whales, these repeated disruptions appear to have turned prime habitat into what biologists call “population sinks,” attracting the whales with sufficient food to survive but preventing them from calving and nourishing their young.

NRDC has been advocating for safer sonar use since the mid-1990s, just as evidence of the technology’s dangers had begun to emerge. By 2000, that evidence was undeniable, most powerfully in the image of more than a dozen whales — representing four species — mysteriously beached across dozens of miles in the northern Bahamas after one of the U.S. Navy’s mid-frequency sonar exercises there. Although the navy initially denied responsibility, a government-led investigation ultimately established a direct link between this unusual mass stranding and the exercise.

There followed a series of intensely fought court cases, where for years we challenged the government’s decision to authorize sonar training without sufficient review. Our success in these cases brought the navy in from the cold and into the regulatory process — and, as it did so, sparked millions of dollars in ocean research. At the same time, the science grew more and more concerning.

The National Marine Fisheries Service — the federal agency tasked with protecting the health of our marine animal populations and their habitats — has long known about the dangers posed by ocean noise to marine mammals. Which is why it was so deeply troubling when, in December 2013, the agency signed off on a new training-and-testing plan by the U.S. Navy that would, according to the government’s own estimates, impact marine mammals off Southern California and Hawaii as many as 10 million times over the course of five years. Most disturbingly, the Fisheries Service did virtually nothing to safeguard important habitat for vulnerable species, which the scientific community, conservationists, and the government itself have long agreed is the most effective means of protecting ocean life from high-intensity sonar.

Recognizing the potential for serious damage, NRDC and other groups filed suit in federal court, claiming that the Fisheries Service had violated multiple requirements of the Marine Mammal Protection Act and the Endangered Species Act when it green-lighted the navy’s request. If carried out, we argued, the illegally authorized plan would harm more than 60 whale, dolphin, seal, and sea lion populations.

Under almost any set of circumstances, suing the federal government is far from a sure thing. And when the lawsuit involves the military, with national-security issues suddenly coming into play, the plaintiff’s uphill climb is made that much steeper. In addition, a reflexive hesitancy always accompanies the filing of a lawsuit against a branch of the government whose primary purpose is to keep Americans safe. But in this instance, we were emboldened by the magnitude of the potential impact and the need to protect marine mammals. We were also convinced that the law was on our side.

The court agreed. Earlier this year, in a 66-page opinion, the federal judge presiding over the case found that the U.S. Navy’s training-and-testing plan was in violation of multiple environmental laws and should never have been authorized by the Fisheries Service in the first place. In the wake of that decision, the navy came to the table.

For the first time, the U.S. Navy agreed to put significant habitat in the Pacific off-limits to tactical sonar training. Habitat protection had been a line in the sand for the Pacific fleet, resisted for years despite the importance and practicability of the measure, making negotiation of any sort impossible. The settlement protects habitat for the most vulnerable marine mammal populations, including off San Diego, rich feeding grounds for endangered blue whales, the largest animals ever to have lived on the planet; among California’s Channel Islands, a refuge for acutely sensitive populations of beaked whales; and around Maui and the Big Island of Hawaii, habitat for the numerous small whale and dolphin populations for whom the islands are truly an oasis, their only home. Critical to the agreement was the availability of CetMap, an important new tool that charts the density and distribution of marine mammals off our coasts, which we had strongly advocated for and which the navy had helped fund.

It’s important to note that the settlement, while a tremendous victory for advocates, doesn’t represent the finish line. The case at issue only pertains to naval activity in waters off Southern California and Hawaii; elsewhere, whales and other marine mammals still remain highly vulnerable to the effects of high-intensity sonar and underwater detonations. And the agreement covers U.S. Navy activities only through the close of 2018, when the government will have issued new environmental analyses in an attempt to cure the numerous legal defects in its current ones. Yet, as a model, the remedies detailed in the language of the settlement point the way forward.

In short, today’s settlement, however it came about, creates genuine opportunity for change, for protecting marine mammals without compromising our national-security needs — off the East Coast, in the Gulf of Mexico, and in the rest of the U.S. Navy’s Pacific ranges. The question is whether we will have the courage to seize it.

Written with Jeff Turrentine