Go Navy, Beat 9th Circuit

You may think that most Americans would want our military to be prepared to counter all threats to our national security through continuous training in all aspects of warfare. While the public may see disruptions to their daily lives as a result of this training, such as having to contend with the noise of jet aircraft, most people realize that these ill effects are a reasonable price for having armed forces that can protect them. 

Unfortunately, some military training can have long-term negative consequences to local populations and the environment. The most notable instance of this is the effect of several of the Navy’s sonar systems on marine life. Sound waves from this equipment, which is used to detect submarines, have been known to cause marine mammals such as whales to alter their behavior, sometimes to the point of beaching themselves. The Navy recognizes this problem and has taken steps to minimize its use of active sonar in order to protect these animals as much as possible.

The Navy, however, can only do so much. Though ships routinely search for these mammals before they start training with active sonar and will halt operations if a mammal comes with 200 yards of the ship, marine life is still occasionally harmed. The Navy maintains this training is necessary component of its antisubmarine warfare capabilities, yet environmentalists, now with the help of the 9th Circuit U.S. Court of Appeals, are currently trying to prevent the Navy from conducting this training.

While environmentalists have long pushed for the Navy to halt the use of active sonar, only within the past year has their movement gained significant national attention. After the passage of the Marine Mammal Protection Act in 1972, all Americans, including the military, were to curtail behaviors that could harm animals and possibly cause their extinction. Included in this act, however, was a provision that allowed for exemptions in order to maintain the nation’s defenses. With the permission of the Secretary of Commerce, the Defense Department may, for 2 years at a time, engage in behaviors that could harm marine mammals if the Secretary of Defense believes these military operations are crucial. Last January, the Navy applied for an exemption from the act in order to use active sonar. In order to remain in spirit with the law, the Navy’s director of environmental readiness, Admiral James Symonds, said the Navy would “employ stringent mitigation measures…to protect marine mammals during all sonar activities.”

Despite this assurance and the precautions the Navy has already developed to minimize harm to animals, the exemption outraged several environmental groups and local agencies. One such agency, the California Coastal Commission, filed a lawsuit against the Navy in March, alleging that they were not doing enough to follow the act and were violating a California law that protects marine wildlife. Despite the fact that the Commission recognized that the Navy, in most cases, tries its best to adhere to the Commission’s precautions, it was upset that the Navy refused to follow these precautions in all cases. The Commission’s chairman, Patrick Kruer, complained that the Navy’s actions were “baffling” and that it was “challenging the jurisdiction of the entire commission.”

In November the 9th Circuit Court sided with Kruer and the California Coastal Commission. While the court fortunately had earlier overturned a ruling that prohibited all use of active sonar, it responded positively to another lawsuit in the same spirit brought by the Natural Resources Defense Council. The November ruling ordered the Navy to halt active sonar operations until it could lessen the effects on marine mammals. This proved problematic to the Navy, as it had planned a large antisubmarine exercise for last month. On a broader scope, however, the decision worried Navy leaders as more nations, such as China, are rapidly growing their submarine forces and creating a need for expanding undersea warfare training.

Fortunately for the Navy, President Bush found a way for it to continue its sonar training. Another law, the Coastal Zone Management Act, allows states to set feasible regulations for behavior of federal agencies in its waters, but only if those regulations do not interfere with the activities of that federal agency.  In such a case, the president has the ability to grant the federal agency an exemption if he believes the agency’s activities are in the interests of the nation as a whole. Here, President Bush agreed the needs of the Navy to maintain proficiency in active sonar use outweighed the concerns of the California Coastal Commission and constituted a legitimate exemption to the Marine Mammal Protection Act. Some in California, most notably Senator Barbara Boxer, are protesting the president’s actions, saying he is trying to overrule a federal judge in a way that exceeds his constitutional authority, despite the law that allows him to do so. In the meantime, the 9th Circuit’s injunction that temporarily halted the sonar use will remain under review.

While no one wants to endanger marine mammals through unnecessary military operations, at what point do we make concessions in training our forces so that we protect the environment from all possible harm? Do we limit the amount of days ships can go to sea or the miles tanks can drive to minimize the amount of oil used in an attempt to halt global warming? The Navy is doing everything in its power to minimize the effect its activities have on marine life, but given the difficulty of detecting the presence of these animals in its operating areas, it is inevitable that some animals may be harmed. 

Nevertheless, the Navy is acting in accordance with the spirit of the Marine Mammal Protection Act.  President Bush is also acting within his authority under the Coastal Zone Management Act. Now, the California Coastal Commission, the Natural Resources Defense Council, the 9th Circuit Court, and Barbara Boxer need to realize that our national security is in part dependent on our ability to conduct antisubmarine warfare. This ability relies on our use of active sonar in some situations, and if they restrict the ability of our sailors to use this technology in training, how do they expect the Navy to use it when it matters?