Security, Sound, and Cetaceans: Legal Challenges to Low Frequency Active Sonar under U.S. and International Environmental Law

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I. INTRODUCTION

Since 1996 at least fifty marine mammals of various species have suffered excruciating injury or death as the likely result of active sonar or similar human-made, extremely high decibel noise broadcast into the world's oceans.1 During the same period, the volume and intensity of the debate over low frequency active sonar (LFAS), which the naval forces of the United States and other countries seek to deploy now or in the near future, has resonated in court-rooms and legislative chambers, raising important questions concerning the extraterritorial reach of U.S. environmental laws, the capacity of international agreements and principles of international law to deal with the growing problem of acoustic pollution in the oceans, and the balance that these laws strike between governmental interests in military readiness and scientific research on the one hand and marine mammal protection on the other. The horror of widely reported, fatal cetacean "strandings"2 has prompted worldwide calls from legal scholars, marine biologists, and concerned citizens for a strengthening of international rules governing ocean noise,3 while within the United States, the involvement of the Navy and federally-funded science projects in whale beachings associated with sonar has led to significant litigation and legislative developments.4 The legal constraints upon the use by the U.S. Navy and federal researchers of active sonar and its equivalents in U.S. and international waters are the focus of this Note.

Several scholars have responded to an initial series of lawsuits in U.S. courts challenging the Navy's and federal research vessels' use of active sonar by applauding the vigorous, extraterritorial enforcement of U.S. environmental law to restrain such use,5 and some have suggested that provisions or norms of international law may be even more restrictive of LFAS than U.S. law, and enforceable in U.S. courts.6 Some scholars have, however, criticized what they consider the obstructionist tactics of plaintiffs whose litigation significantly and dangerously hampers both military readiness and scientific research necessary to protect cetaceans.7 This criticism led Congress to relax certain provisions of the Marine Mammal Protection Act (MMPA)8 in November 2003.9

This Note addresses each of these scholarly perspectives in light of legislative and judicial developments in 2003 and 2004 and argues that the salient requirements of both U.S. and international environmental law, to the extent that both apply to the federal government's use of LFAS, are as follows: (1) those seeking to use LFAS must thoroughly, in good faith, and with public participation, assess its environmental impact; and (2) following such environmental assessment, those parties using LFAS must monitor and mitigate the harmful effects of LFAS to the greatest extent possible. Neither U.S. environmental law nor international law, including the precautionary principle, prohibits per se the deployment of LFAS or the incidental killing of marine mammals, and balancing the interests in sonar use versus environmental harm is appropriate under U.S. and international legal regimes. U.S courts, in balancing the need for sonar versus the harm it seems likely to cause, have charted a course that satisfies these twin demands of U.S. and international environmental law. As the results of recent and pending cases thus far demonstrate, neither an outright bar to using LFAS nor a blanket exception for military or research activities would be appropriate, and the balance that courts have struck between the competing interests of military readiness and research versus environmental protection is reasonable. The 2003 MMPA amendments, while potentially opening a loophole for unregulated destruction of marine mammals by the Navy or federal researchers, are intended to maintain this balance.

Part II of this Note describes the problem of sonar and ocean noise and surveys provisions of U. …