By Sara O’Shea
The oceans and dark depths of the seas are some of mankind’s last frontiers. Little is known about them or the creatures that inhabit them. However, advancing technology is at the same time opening up the seas as it is threatening them.
As technology is further developed allowing further access to and use of the oceans, the oceans become noisier places. Formerly only disturbed by the natural sounds of ocean waves and whale calls, ship engines, sonar, and air gun blasts now disturb that peace. These disturbances are harmful to the marine mammals who use sonar to communicate, navigate, and find their food. Man-made sonar has been known to change migratory patterns, drive animals from essential habitat, and is believed to have previously caused marine mammals to beach their selves in order to escape the offending sound. A study in the Gulf of Fundy found a significant decrease in the production of whale stress hormone following the September 11, 2001 attacks corresponding with a sharp decrease in ship traffic in the Bay. Sound waves are also believed to cause tissue damage and other severe physical injuries.
In March of this year, the non-governmental organization, Earthjustice, in cooperation with the Conservation Council for Hawaii and numerous other plaintiffs won a summary judgment motion in their favor in District Court of Hawaii against the National Marine Fisheries Service. The plaintiffs had brought the National Marine Fisheries Service to court alleging the defendants’ finding of “negligible impact” under the Marine Mammal Protection Act was arbitrary and capricious, that the defendants’ biological opinion did not satisfy the Endangered Species Act, and that the Final Environmental Impact Statement failed to comply with the National Environmental Policy Act. District Court judge Susan Oki Mollway found that between failing to consider the impact of the actual estimated take rather than the estimated amount, considering enough alternatives or take a “hard look” at environmental consequences, or to use the best scientific evidence available. Conservation Council for Haw., et al., v. Nat’l Marine Fisheries Serv., et al, 2015 WL 1499589 (D. Haw. March 31, 2015) Therefore the court struck down the National Marine Fisheries Services’ decision approving complete use of the Pacific Ocean for Navy sonar practices and trainings and instead in a consent order restricted certain areas and placed other conditions to limit the impact on sensitive populations. Conservation Council for Haw., et al., v. Nat’l Marine Fisheries Serv., et al., Stipulated Settlement Agreement and Order (Sept. 14, 2015). Additionally, the Navy is required to report any deaths related to their practices. Earthjustice reports having been informed of the deaths of two bottlenosed dolphins following a Navy exercise 80 nautical miles away. David Henkin, New Navy Agreement Means Dolphins Won’t Die in Vain, Earthjustice (Nov. 5, 2015), http://earthjustice.org/blog/2015-november/new-navy-agreement-means-dolphins-won-t-die-in-vain.
However, this case is only a partial win. Navy sonar is but one source of underwater sound pollution. A second major source is oil and gas exploration. Oil and gas exploration is conducted using seismic air gun blasts, the returning sound waves help scientists to determine the location of oil and gas deposits under the sea floor. Unfortunately a large area of the Atlantic seaboard has recently been approved for air gun testing to open the area up for oil and gas drilling. With some protections in place for local marine mammal and sea turtle populations, the Hawaiian case raises the question whether the National Marine Fisheries Services’ approval of the Bureau of Ocean Energy and Management’s Environmental Impact Statement and chosen plan was adequate.
My Pace Environmental Law Review Note will analyze the question whether better protections need to be put in place to prevent further harm to sea life. My analysis begins with Earthjustice’s case against the National Marine Fisheries Service and whether this is a true win for the organization and the environment or a procedural, individual win, not applicable to other cases. Second, my note analyzed possible legal protections that could be used to remedy the situation, focusing on those that can be used to create a zoning system that could at least prevent entry into certain areas with buffer zones in place to prevent harm to animals living in those areas.