Comment from Barbara Thomas, Stanford Law School

The training exercises that the Navy proposes to conduct in the Southern California range from 2009 to 2014 are apparently very similar to those that have in the past provoked extended litigation against the Navy by environmental groups (e.g., the RIMPAC litigation in 2006 and the ongoing SOCAL case, NRDC v. Winters, currently under review by the Supreme Court). These exercises, like those previously challenged in court, involve extensive use of mid-frequency active sonar, which is likely to result in substantial harm to thousands of marine animals. In the prior legal actions concerning similar naval activities, environmental groups pointed out that the National Marine Fisheries Service (NMFS) lacks the statutory power to authorize naval training exercises that would result in a non-negligible adverse impact upon protected marine species. They further asserted that the NMFS may authorize activity resulting in negligible adverse impact only if the agency also prescribes regulations intended to minimize that impact to the extent practicable. 16 U.S.C. § 1371(a)(5)(D). In authorizing the challenged naval sonar activities, the NMFS had, according to the environmental groups, exceeded its authority under the Marine Mammal Protection Act (MMPA) because (1) the impact of the takings involved in the authorized naval activities was not “negligible,” and (2) the NMFS had failed to promulgate regulations that would mitigate the impact of the Navy’s activities to the extent practicable. The environmental groups have, thus far, been successful in both of their lawsuits against the Navy and the NMFS; each suit has required the Navy to take much more rigorous measures to mitigate the environmental impact of its sonar exercises. And yet neither the Navy nor the NMFS appears to have incorporated the lessons of these legal actions into their practices, as shown by the proposed regulation released for comment. Much like the regulations at issue in past litigation, the proposed rule authorizes extensive use of sonar by the Navy without requiring suitable mitigation measures. While the regulation does specify that the Navy will limit transmissions when a marine mammals comes within 1,000 feet of a sonar source—a welcome improvement over previous rules—it does not require heightened mitigation measures for use in surface-ducting conditions or modifications to ship activity levels during periods of low visibility. It also omits any kind of geographical restriction, meaning that the Navy may conduct precisely the same activities in especially vulnerable areas that it may anywhere else in the SOCAL range. Each of these mitigation measures is practicable and has been required of the Navy in the past as a result of environmental litigation. These mitigation efforts should be required if the Navy’s proposed activities are to be authorized. On the other hand, if the Navy and/or NMFS believes these measures to be impracticable or unnecessary, then a statement of that belief and an explanation of its factual underpinnings should accompany the proposed authorization in the Federal Register. Recent litigation has rendered suspect the ability of the Navy and NMFS to provide adequately for the protection of marine life and to fulfill their obligations under the MMPA. Both entities should seek to reassure the public on that score by either tightening lax mitigation requirements or justifying them. Barbara Thomas