By Pel Beyak

An appeal to the U.S. Supreme Court last week renewed discussion on naval sonar and its effect on marine mammals. The lawsuit, issued by the Natural Resources Defense Council (NRDC), was heard by a federal judge, but then appealed by the Navy.

The NRDC believes the Navy has been violating the Marine Mammal Protection Act by its use of sonar in training exercises. The act prohibits the “taking” of marine mammals, such as whales and dolphins, without a permit. “Taking” refers to killing, capturing, or harassing an animal.

Studies published by the Office of Naval Research, the National Science Foundation, and the U.S. Geological Survey all indicate that sonar causes changes in animal behavior that can be damaging or deadly.

This environmental case is unusual due to its lack of debate between the two opposing parties.

“There’s no debate that mid-frequency active sonar has killed marine mammals,” said Stephen Zak Smith, a litigation fellow working for the NRDC. “The Navy has admitted that on several occasions.”

For the last year, the lawsuit has been shuffled up and down various levels of the judicial system, due to appeals and remanding — the term for when a court of appeals sends a case back to the original court.

The NRDC began by filing for an injunction, after which the Navy would have to decrease the power of their sonar equipment if a marine mammal was spotted within 2,000 meters. The Navy would also have to completely shut off its equipment if the creature comes within 200 meters. During the legal process, President Bush and the Council on Environmental Quality issued the Navy a waiver for the Coastal Zone Management Act. The NRDC considered that illegal.

Naval sonar primarily comes in two forms: low-frequency and mid-frequency. Mid-frequency is the more common of the two.

“Mid- to low-frequency sound is known to have profound effects on harbor porpoises,” said Michael Jasny, a senior policy analyst for NRDC. “They are the most acoustically sensitive of all marine mammal species. They’ve been found fleeing areas [of sonar use] for many tens of miles. This depletes these animals.” Exhaustion from lack of energy can pose long-term problems, he added.

Mid-frequency sonar was used in the Bahamas in 2000 during a naval exercise. Afterward, 17 mammals of four different species were found dead on a beach. A post-mortem exam was done on some of the animals.

“The tissue damage was consistent with intense acoustic events,” Jasny said. “It’s the equivalent of a human’s burst eardrum.”

In one particular instance, scientists were present to watch whale behavior during a sonar exercise. Three researchers were working in Haro Strait, near the U.S.-Canada border, when the U.S.S. Shoup passed by. As the ship came close, the whales stopped foraging for food, and instead tried to find a quieter place. According to Jasny, when the ship continued to approach, the pod acted in what looked like panic.

A controlled experiment was also conducted on Wright whales, a species that is often struck by ships. “Every single Wright whale struck by a ship brings the species one step closer to extinction,” Jasny said.

During the experiment, sonar was used at lower levels than naval exercises. Even then, five of the six Wright whales broke off from foraging, and surfaced, unmoving, rendering them even more likely to be hit by a ship.

“This behavior is extremely disturbing,” Jasny said. “It can really debilitate a population.”

As a function of the National Environmental Protection Act, the Navy released an environmental impact statement (EIS) describing the effects of training exercises in southern California.

“The National Marine Fisheries Service and National Oceanic and Atmospheric Administration are cooperators on this EIS,” said Patricia Ryan, an environmental public affairs officer for the Navy. “Because of that, this is a collaborative effort. It’s a good relationship.”

Currently, the Department of Justice, which represents any government agency that has been sued, has filed a writ of certiorari in the Supreme Court, the standard method that brings cases from appellate courts upward.

Still, Smith of the NRDC speculated that the case would not end up in the nation’s highest court.

“This is a very fact-intensive case,” Smith said. “We expect that this is not the type of case the Supreme Court will take, given its fact-intensive nature.”