NOAA, Court Focus on Marine Mammals

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NOAA, Court Focus On Marine Mammals

Ship Speed Limited; Sonar Use Debated

By Jerry Markon and Juliet Eilperin

Washington Post Staff Writers
Thursday, October 9, 2008; Page A02

The government yesterday issued a long-delayed regulation imposing speed limits on East Coast ship traffic that threatens the critically endangered North Atlantic right whale, while barely a mile away the Supreme Court wrestled with a dispute between the Navy and environmentalists over the impact of sonar exercises on whales and other marine mammals.

North Atlantic right whales, which were intensely hunted in the 1800s during the height of the U.S. whaling boom, now number fewer than 400 and rank among the most endangered animals in the world. The rule issued by the National Oceanic and Atmospheric Administration requires large ships to slow to 10 knots (11.5 mph) during parts of the year when they come within 20 nautical miles of several East Coast ports in areas where the whales feed, reproduce and migrate.

In July 2006, NOAA scientists proposed buffer areas extending 30 nautical miles, but shipping interests said that would cost them too much time and money, and they lobbied the White House to scale back the regulation. Aides to Vice President Cheney and National Economic Council Director Keith Hennessey weighed in on the issue, questioning the benefits of establishing a wider buffer.

NOAA Administrator Conrad C. Lautenbacher said the new rule, along with existing measures aimed at preventing the whales from becoming entangled in fishing gear, would help protect the species. "The ship strike rule, based on science, is a major addition to NOAA's arsenal of protections for this endangered species," he said in a statement.

Researchers at NOAA's Fisheries Service estimate that about 83 percent of right whale sightings in the mid-Atlantic region are within 20 nautical miles of shore, while the 30-mile limit would encompass 90 percent of all sightings.

Scientific experts said yesterday that the rule, which will go into effect in early December, could help protect the right whales even if it does not go far enough. On Monday, the International Union for Conservation of Nature cited ship strikes as a major factor in why nearly a third of the world's marine mammals are at risk of extinction.

Randall Reeves, chairman of the union's cetacean specialist group, praised the 10-knot restriction in an interview, saying that a 30-nautical mile buffer "would have been nice, but 20 is better than nothing."

Since NOAA first proposed the regulation in 2006, at least three right whales have died from ship strikes, and two have been wounded by propellers.

During oral arguments before the Supreme Court yesterday, Justice Stephen G. Breyer expressed frustration at the dispute over the Navy's use of loud, mid-frequency sonar during submarine exercises off the Southern California coast.

Environmental advocates say the exercises violate the law, citing evidence showing that the sonar disorients whales and other marine mammals, sometimes leading them to strand themselves and die. The Navy says the exercises are needed to train sonar operators to detect quiet new submarines deployed by China, North Korea and other potential adversaries. It calls the training vital to national security in a time of war.

"I don't know anything about this. I'm not a naval officer," Breyer told an environmental lawyer during the arguments. He later said: "Why couldn't you work this thing out? . . . You are asking us -- who know nothing about whales and less about the military -- to start reading all these documents to try to figure out who's right."

As laughter echoed in the marble-and-velvet courtroom, Breyer added: "I think the whole point of the armed forces is to hurt the environment. . . . On a bombing mission, do they have to prepare an environmental impact statement first?"

The comments from Breyer, a member of the court's liberal wing, indicated that the decision in Winter v. Natural Resources Defense Council might not fall along ideological lines. Chief Justice John G. Roberts Jr. sharply questioned both sides, calling a key part of the Navy's argument "odd" but said environmentalists are being "very unfair" because the Navy is trying not to cause harm.

Justice Samuel A. Alito Jr. questioned whether a lower court judge who halted the use of sonar, but then allowed it with restrictions that the Navy opposes, is "an expert on anti-submarine warfare."

"Isn't there something incredibly odd about a single district judge making a determination on that defense question that is contrary" to the Navy's, he said.

Although much of the argument focused on the potential harm to whales, legal experts said the case raises broader questions about the military's obligation to obey environmental laws as well as the constitutional separation of powers.

The dispute centers on 14 training exercises off the California coast that began in February 2007 and are scheduled to end in January. The Natural Resources Defense Council filed suit in federal court to stop or modify the use of sonar.

The Bush administration, seeking to overturn an appellate court ruling that upheld the restrictions on sonar use, is relying on arguments it has offered in other national security cases since the Sept. 11, 2001, attacks. The administration's attorneys said the judiciary must defer to its determination that the exercises constitute a national security emergency that overrides the requirements of several environmental laws.

Environmentalists say the Navy must adhere to the law. They say that an adverse ruling could free the government to take
other actions that could harm the environment without studying their effects.

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