Public awareness and attitudes towards naval sonar mitigation for cetacean conservation: A preliminary case study in Fairfax County, Virginia (the DC Metro area)

Marine Pollution Bulletin 63 (2011) 49–55

Contents lists available at ScienceDirect

Marine Pollution Bulletin journal homepage: www.elsevier.com/locate/marpolbul

Public awareness and attitudes towards naval sonar mitigation for cetacean conservation: A preliminary case study in Fairfax County, Virginia (the DC Metro area) K. Zirbel a, P. Balint a,b, E.C.M. Parsons a,c,⇑ a b c

Department of Environmental Science and Policy, George Mason University, 4400 University Drive, Fairfax, VA 22030, USA Department of Public and International Affairs, George Mason University, 4400 University Drive, Fairfax, VA 22030, USA University Marine Biological Station Millport (University of London), Cumbrae KA28 0EG, Scotland, UK

a r t i c l e Keywords: Cetacean Beaked whale Naval sonar Court cases Public attitudes Mitigation measures

i n f o

a b s t r a c t The potential impacts of naval sonar on cetaceans has led to a series of court cases and statements of concern by international organizations. However, there has been no research conducted on attitudes of the general public with respect to this issue. To investigate this, a preliminary public survey was conducted in Fairfax, Virginia (the Washington, DC Metro region). The majority of the public sampled believed that naval sonar impacted marine mammals (51.3%), that the US Navy should not be exempt from environmental regulations in time of peace (75.2%), and that sonar use should be moderated if it impacts cetaceans (75.8%). Individuals who were conservative, Republican, and have served in the military were more likely to believe the Navy should be exempt from marine mammal protection regulations. In addition, expert interviews were conducted to gain opinions on the potential ramifications of the recent US Supreme Court case on naval sonar mitigation. Ó 2011 Elsevier Ltd. All rights reserved.

1. Introduction Levels of anthropogenic noise in the marine environment have increased greatly over the past few decades (Andrew et al., 2002). Probably the most contentious and controversial source of underwater noise is that of active sonar used by the military, in particular mid-frequency active sonar (c. 1–10 kHz). Numerous studies have linked low (<1 kHz) and mid-frequency military sonar to changes in cetacean behavior, acoustics or distribution (Balcomb and Claridge, 2001; Clark and Altman, 2006; Cressey, 2008; Croll et al., 2001; D’Amico et al., 2009; Fristrup et al., 2003; Maybaum, 1993; Miller et al., 2000; Parsons et al., 2000, 2008; Rendell and Gordon, 1999; Watkins et al., 1985). Mass strandings of cetaceans, particularly of beaked whales, have raised the most public concern around sonar impact. Locations where such strandings have occurred include the Canary Islands, Greece, Spain, the US Virgin Islands, and the Bahamas (Balcomb and Claridge, 2001; Frantzis, 1998, 2004; Frantzis and Cebrian, 1999; Simmonds and Lopez-Jurado, 1991; Parsons et al., 2008; Taylor et al., 2004). Upon post-mortem examination, many such stranded animals have shown signs of hemorrhaging in the inner ears and cranial air ⇑ Corresponding author at: Department of Environmental Science and Policy, George Mason University, 4400 University Drive, Fairfax, VA 22030, USA. Tel.: +1 301 977 7109. E-mail address: [email protected] (E.C.M. Parsons). 0025-326X/$ - see front matter Ó 2011 Elsevier Ltd. All rights reserved. doi:10.1016/j.marpolbul.2011.03.007

spaces (Balcomb and Claridge, 2001; Ketten, 2005) or lesions suggestive of decompression sickness or ‘the bends’ (Jepson et al., 2003, 2005; Fernández et al., 2004, 2005). Parsons et al. (2008) discuss how the US Navy’s resistance to mitigation measures revolve around the argument that mitigation will restrict in field training, and this in turn will impact national security. However, Parsons et al. (2008) point out that adversely impacting biodiversity can itself lead to security risks, a message highlighted in the Millennium Ecosystem Assessment (2005) report on biodiversity: ‘‘Biodiversity benefits people through more than just its contribution to material welfare and livelihoods. Biodiversity contributes to security, resiliency, social relations, health, and freedom of choices and actions’’ (p. vi). Causing environmental damage may result in social, ecological and biological effects that can ultimately have much wider impacts than on just the environment, and thus caution should be exercised by the military before discounting the importance of biodiversity protection. Concerns over the impacts of sonar on marine mammals have led to statements and resolutions by international treaty organizations (Parsons et al., 2008) and a number of court cases within the US (see Zirbel et al., 2011). In particular the injunctions that were the result of the case Natural Resources Defense Council [NRDC] v.

50

K. Zirbel et al. / Marine Pollution Bulletin 63 (2011) 49–55

Winter1 were based upon concerns that mitigation measures used during US Navy exercises were not sufficient to protect cetaceans, a position that was largely agreed upon by the presiding judges. The injunctions required the Navy follow mitigation measures during its exercises including: (1) 12 mile sonar exclusion zone; (2) use of lookouts for marine mammals; (3) restrictions on use of helicopter dipping sonar; restrictions on sonar use in geographic choke points; (4) 2200 yard sonar shutdown zone when marine mammals are present; (5) and the powering down of sonar during surface ducting conditions.2 In response and opposition to the lower court rulings, the US Government sought a ruling by the US Supreme Court in Winter v. NRDC2 (Craig, 2009; Zirbel et al., 2011).The Supreme Court made its final ruling concerning Winter v. NRDC, on November 12th, 2008,2 in support of the Navy (a majority of five judges to four). However, the ruling was largely based on balancing harms and did not particularly comment on the issue of mitigation measures or specifically impacts of sonar on cetaceans (Craig, 2009; Zirbel et al., 2011). The court determined that ‘‘a plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is like to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest’’.2 Consequently, the possibility of harm is not significant enough to warrant preliminary injunctions and the public interest of an effectively trained Navy outweighs this possibility of harm.2 The Supreme Court determined that the shutdown zone of 2200 yards was inappropriate because the lower court based this on the shutdown zone of 2000 m used for LFAS.2 The Supreme Court also claimed that the powering down of MFAS during surface ducting conditions was unacceptable since Diesel-electric submariners are trained to take advantage of surface ducting to avoid detection and adequate training would need to occur during these conditions.2 The Court left the rest of the injunction intact, asserting that the Navy had not challenged the other measures imposed in the injunction.2 There have been concerns regarding the potential long term effects of the ruling, in particular with respect to the lingering impacts on environmental legislation and litigation (Eubanks, 2009). Government policy is arguably influenced by the will and opinions of the general public. However, to date, there has been no research conducted specifically into attitudes of the general public on the mitigation of sonar activities upon cetaceans, and little research into the level of public knowledge around this issue. This study is a preliminary examination of public attitudes with respect to naval sonar mitigation and cetaceans, using a sample of the public from Fairfax County, Virginia in the Washington, DC metro area. Understanding public attitudes towards mitigation measures may be valuable in garnering support for current and future legislation aimed at responsible management of the marine environment and protecting these valuable resources.

2. Materials and methods 2.1. Survey of the general public The survey instrument and sampling procedure complied with the guidelines and conditions set forth by the Human Subjects Review Board of George Mason University (http://research.gmu.edu/ 1 Natural Resources Defense Council v. Winter, No. 8:07-cv-00335-FMC-FMOx, 2007 WL 2481037 (C.D. Cal.. 2007), 502 F. 3d 859 (9th Cir. 2007), 508 F. 3d 885 (9th Cir. 2007), 530 F. Supp. 2d 1110 (C.D. Cal., 2008), 513 F. 3d 920 (9th Cir., 2008), 527 F. Supp. 2d 1216 (C.D. Cal, 2008), 516 F. 3d 1103 (9th Cir., 2008), 518 F. 3d 658 (9th Cir., 2008), 518 F. 3d 704 (9th Cir., 2008), No. 07-1239, 2008 WL 859374 (2008), 128 S, Ct, 2964 (2008). 2 Winter v. Natural Resources Defense Council. 129 S. Ct. 365 (2008).

ORSP/HumanSubjects.html). It was pretested on a class of willing undergraduate students to gauge respondent reactions to the wording, order, and form of the questions and to test the questionnaire for clarity and participant understanding. The survey instrument was also critiqued and revised by faculty review. Between May 2009 and October of 2009, the survey was distributed throughout Fairfax County (located in the western part of the DC metro area) at local community events and also at stores that would attract a widecross section of the community (e.g. grocery stores, coffee shops). Individuals present in the sampling area were asked if they would like to participate in the study, and those who declined were not asked again. No specific individuals were sought for participation and no incentives were provided. Approximately 30% of the individuals sought for participation agreed to fill out the survey instrument. Each survey was coded into PASW 18 (formerly SPSS) for statistical analysis and to ensure that surveys were coded and entered properly, each survey was coded twice and entered into separate files in the software. The question ‘‘Should the Navy be exempt from marine mammal protection regulations in times of peace?’’ was used as the dependent variable for the purposes of data analysis and hypothesis testing (with response choices being yes, no, or unsure). Individuals who chose ‘‘unsure’’ were left out of the statistical analysis. Pearson’s chi-square tests were used to determine which demographic variables had significant relationships. Respondents were asked a series of questions relating to demographics, attitudes towards marine conservation, national security, and the impact of sonar on cetaceans, and knowledge of the US Supreme Court case Winter v. NRDC. Demographic questions asked included birth year, highest level of education, political ideology, political party affiliation, military service, environmental group membership and ocean activity participation. With respect to attitudes to marine conservation, respondents were asked how important marine conservation was to them personally, whether or not they believe the United States should protect marine mammals using laws and regulations, how effective they think policy has been in protecting marine mammals, and which policy they believe is the most effective in promoting conservation of marine mammals. Questions pertaining to national security included ranking several issues to see how national security compared to the environment, how important national security was to them personally, how effective they believe the use of Navy sonar is in promoting national security, and what level of threat they perceive foreign submarines are to US national security. Questions pertaining to the US Navy and marine mammals included if the respondent believes the US Navy should be exempt from marine mammal protection regulations in times of peace, does the respondent believe Navy sonar impacts marine mammals, if Navy sonar does impact marine mammals what the respondent believes should occur, and who respondents think is responsible for decisions about the use of Navy sonar. Questions dealing with the Supreme Court case Winter v. NRDC included how knowledgeable an individual considers himself or herself to be about Winter v. NRDC, the impact on marine mammals that the Supreme Court case decision will have, whether or not the respondent believes the Supreme Court made the correct decision by supporting the Navy, and what factors affected the Supreme Court’s decision making process.

2.2. Expert interviews In order to address the potential implications of the Supreme Court case, Winter v. NRDC, interviews were conducted with environmental lawyers and marine policy experts with a predesigned questionnaire. The interview questions and collection procedure

K. Zirbel et al. / Marine Pollution Bulletin 63 (2011) 49–55

were approved by the Human Subjects Review Board of George Mason University prior to conducting interviews. Participation was purely voluntary and names are withheld to preserve the anonymity of the interviewees due to the sensitive nature of the responses in relation to occupation and in some cases involvement in the Supreme Court case. These interviews sought to gain insight into the political, legal, naval, and environmental ramifications of the Supreme Court’s decision and the possible precedent that it will set. With regards to the political ramifications, experts were asked to speculate about the possible political ramifications of the Supreme Court’s decision, the political forces that may have influenced the decision, how the case relates to military, state, and federal power, as well as environmental NGO influence. The experts were asked about the legal ramifications and to speculate about the legal precedence of the case, how the decision will impact environmental law, and the possible ramifications for environmental policy. With regards to naval ramifications, the experts were asked to speculate how the case will impact the Navy’s practices, how the Navy interacts with the marine environment and whether or not they believe it is possible to reconcile national security efforts with environmental protection. The experts were also asked about the environmental ramifications of the case more specifically, what the decision means in terms of marine conservation, the overall environmental ramification of the decision, and what the next step for scientists and environmental NGOs should be in the future.

3. Results 3.1. Survey of the general public A total of 156 surveys, each containing 28 questions, were distributed (respondents were all age 18+). Seventy-five percent of those surveyed who had an opinion (N = 129) stated that the US Navy should not be exempt from marine mammal protection regulations in times of peace (Fig. 1). For analysis many of the demographic categories were collapsed to provide sufficient sample sizes. For example, participants were put into one of three age categories (<30, 40.4%; 31–50, 26.3%; 50>, 30.1%) for analysis, and results of the Pearson’s chisquare test (v2 (df = 2, N = 124) = 4.821, p = .090), indicate that that there was no relationship between age and attitudes to naval exemption from regulations. With respect to education, participants were categorized as having a bachelor’s degree from a university (37.2% of the sample population), less than a bachelor degree (i.e., a high school diploma, GED, or Associate’s degree; 31.4%) or a graduate/professional degree (i.e., MS, PhD, JD, MD; 31.4%). It was hypothesized that those with higher levels of education might be more favorable to naval regulation. This was rejected

Fig. 1. Percentage of respondents by how they replied to question 2: should the Navy be exempt from marine mammal protection regulations in times of peace.

51

as the results of the Pearson’s chi-square test (v2 (df = 2, N = 129) = 1.945, p = .593) did not indicate a relationship between the level of education and attitudes towards exemption from marine mammal protection regulations. In terms of political ideology, 28.2% of respondents considered themselves to be ‘‘liberal’’, 27.6% stated that they were ‘‘conservative’’ and 39.1% were ‘‘moderate’’ (3.9% of the total sample categorized themselves as ‘‘other’’ and were not included in this analysis). It was hypothesized that individuals identifying themselves as conservative would be more likely than those who were liberal to favor exemption. There was a significant relationship between attitude towards naval exemption from marine mammal protection regulations and political ideology (Pearson’s v2 (df = 2, N = 124) = 35.091, p  0). A majority of moderate respondents (84.0%) and a majority of liberal respondents (97.5%) felt that the Navy should not be exempt from marine mammal protection regulations. On the other hand, a majority of conservative respondents (58.8%) felt that the Navy should be exempt from such regulation. Linked to this, the US political party affiliation of respondents was also examined. The US has effectively a two party system: the Democratic Party is more ‘‘left’’ leaning or liberal and the Republican Party is more conservative or ‘‘right’’ wing (9.15% of the total sample responded that they had other party political affiliations such as ‘‘libertarian’, but these were excluded from the analysis). Just over a third of respondents declared themselves to be Democrats (37.8%), 28.85% stated that they were Republicans, and 32.1% stated that they were ‘‘independent’’ voters. Again there was a significant relationship (Pearson’s v2 (df = 2, N = 127) = 37.469, p  0).A majority of ‘‘Democrat’’ respondents (98%) and ‘‘Independent’’ respondents (73.8%) felt that the Navy should not be exempt from marine mammal protection regulations in times of peace. However, a majority of Republicans (57.1%) felt that the Navy should be exempt. The similarity of this test to the political ideology results above can be expected since the political parties tend to follow certain political ideologies. It was considered that having served in the military might influence attitudes to naval regulation, with the hypothesis that individuals who have served or currently serve in the military are more likely to favor Navy exemption than individuals who have not served in the military. Of the sample population 15.4% had served in the military and again there was a significant relationship between military service and favoring exemption (Pearson’s v2 (df = 1, N = 129) = 4.382, p = .036). A majority of all respondents whether they served in the military (57.1%) or if they have not served in the military (78.7%) felt that the Navy should not be exempt from marine mammal protection regulations in times of peace. However, respondents who have served in the military were more likely than those who have not to believe the Navy should be exempt. It was also hypothesized that members of environmental groups would be more likely to be against naval exemption. A total of 9.6% of those surveyed were members of environmental groups, however, low expected counts in over 20% of the cells on the contingency table violate Cochran’s rule (Cochran, 1954), so the results of the Pearson’s chi-square are invalid and will not be discussed. The final hypothesis for likelihood of supporting naval exceptions was that individuals who have participated in fewer ocean activities will be more likely to favor Navy exemption than individuals who have participated in more ocean activities. Participants were collapsed into two categories: individuals who participated in three or less ocean activities (such as fishing, sailing, surfing etc.) within the past year (71.2% of the respondents) and individuals who participated in four or more activities within the past year (28.8%). The results of the Pearson’s chi-square test, v2(df = 1, N = 129) = 0.495, p = .482) however suggest that there is no relationship. It is possible that individuals are participating in

52

K. Zirbel et al. / Marine Pollution Bulletin 63 (2011) 49–55

different types of ocean activities some that are beneficial towards conservation whereas others may negatively impact conservation. The type of activity, as well as public general knowledge concerning marine conservation, would be valuable to understand in future studies. Survey questions also sought to determine whether or not the respondents have knowledge concerning the issue of Navy sonar and its impact on marine mammals. When asked ‘‘Do you believe Navy sonar impacts marine mammals?’’ slightly more than half the respondents said ‘‘yes’’ it does (51.3%), and only 11.7% said that ‘‘no’’ it does not (37% were unsure; Fig 2). The respondents were also asked ‘‘if Navy sonar does impact marine mammals, what should be done?’’ A majority of respondents felt that Navy sonar use should be moderated if it impacts marine mammals (75.8%; Fig. 3). Only 19.5% had the opinion that nothing should be done, and just less than one in twenty considered that sonar use should be stopped completely. If future research, using a larger and more geographically diverse sample, finds similar results it would suggest that the public strongly supports mitigation measures to reduce cetacean impact and this information would be very valuable to stakeholders wishing to gain further public support. Respondents were asked how knowledgeable they considered themselves about the Supreme Court case involving Navy sonar and its impact on whales i.e. Winter v. NRDC. A majority of respondents said that they had not heard about the Supreme Court case (50.6%) and a third of the sample knew of the case but did not consider themselves very knowledgeable (35.3%; Fig. 4). This preliminary result suggests that public knowledge about this case is minimal and better dissemination of information would be necessary if stakeholders wish to pursue the public as an avenue for policy change. 3.2. Expert interviews Five experts agreed to be interviewed and provide insight into the potential ramifications of the Supreme Court case Winter v. NRDC. The first four questions dealt with general qualifications of the experts. However, specific information has been left out to protect anonymity of the experts. The interviewee qualifications have been summarized in Table 1 for review. 3.2.1. Political ramifications The experts were asked to describe the potential political ramifications of the case. Four out of five experts agreed that the court case will have very little political ramifications in the future. However, some of the possible ramifications that were mentioned include the enlargement of presidential authority, prioritizing national security concerns over environmental concerns, and allowing military operations leeway with regards to environmental

Fig. 2. Percentage of respondents by how they responded to the question 8 ‘‘Do you believe Navy sonar impacts marine mammals?’’.

Fig. 3. Percentage of respondents by how they responded to the question ‘‘If Navy sonar does impact marine mammals, what should be done?’’.

Fig. 4. Percentage of respondents by how they responded to the question ‘‘How knowledgeable do you consider yourself about the Supreme Court case concerning the Navy and sonar impact on whales (Winter v. NRDC)?’’.

law compliance. Expert 1 said that they see presidential authority to prioritize national security over environmental concerns to be ‘‘manipulated much less under the Obama administration than it was under the Bush administrations.’’ Ultimately, few political ramifications were mentioned. The experts were asked to consider the political forces that may have influenced the Supreme Court’s decision on the case. The interpretation of the law was suggested by Expert 3 as the major political force influencing the decision. The environmental groups responsible for filing suit were also offered as a major political force; however, not one that necessarily influenced the Supreme Court’s decision. Expert 5 mentioned that the judges voted along party lines indicating that party politics may have influenced the decision. Trying to balance national security interests with environmental protection regulations was the major political force mentioned by three of the experts. Since military power, state power, and federal power are all significant political factors in the case Winter v. NRDC, experts were asked to speculate on how this case will impact the relationship between these forces. Experts gave conflicting opinions regarding military power. Expert 4 said the case will not affect military power in any way and the military will try to minimize the likelihood of future litigation. However, all of the other experts mentioned that the military has been given leeway with regards to environmental regulation compliance. Limitations on checks and balances on military power were noted. Two experts suggested that federal power was exerted over state power. The political ramifications on environmental NGO influence were an important factor considered by the experts. This question received a wide gamut of responses. Expert 3 claimed that there was no impact on environmental NGO influence since the case was purely based on interpretation of the law. Expert 1 claimed that NGOs need to more effectively promote the issue in order to gain further public support. Expert 2 believed that the NGOs secured more than most people thought that they would in lower

K. Zirbel et al. / Marine Pollution Bulletin 63 (2011) 49–55 Table 1 Summary of qualifications of experts.

Expert 1 Expert 2 Expert 3 Expert 4 Expert 5

Job title

Job field

Area of expertise

Associate Attorney Professor of Law Senior Scientist, Director Senior Research Specialist Program Leader, Protected Resources

Environmental Law Environmental Law Marine Policy

Public interest environmental litigation Environmental law dealing with water Environmental statistics and marine policy

Marine Policy

Economic and marine policy

Marine Mammal Policy

Marine conservation, cetacean and pinniped biology, surveys and acoustics

courts and said that ‘‘litigation by NGOs has driven a lot of the development of the science regarding active sonar and impact on the oceans’’ which demonstrates their ability to influence decisions. The case was cited by Expert 5 as a loss for the NGO community. 3.2.2. Legal ramifications The experts were asked to predict the legal precedence of the case. According to three experts, this case has a limited impact on legal precedent. Expert 2 said the precedent of the case is narrowly focused on preliminary injunctions and Expert 1 added that it provides limitations on the use of preliminary injunctions when balancing public interests. Expert 2 claimed the case is being used to demonstrate that the military, because its primary objective is national security, is special and is more important than other considerations. Experts were asked about the impact of the case on environmental law. Four of the experts tended to agree that the case has little impact on environmental law outside of the military; however, the case also confirms the existing precedent that the military does not have to comply with environmental law as stringently as other entities. Expert 1 and Expert 2 mentioned that the case has created more strict standards for using preliminary injunctions under the National Environmental Protection Act (NEPA) so that plaintiffs must establish a ‘‘high likelihood’’ for irreparable harm rather than previous precedent in which injunctions were granted under the ‘‘possibility’’ for irreparable harm. The experts were also asked to consider the future impact on environmental policies as a whole due to the case. Three experts said that there needs to be recognition by policymakers that the military can successfully challenge environmental policies. As a result, to reduce military challenges, environmental policies need to be crafted in a way that will make it more difficult to accommodate military activity. Expert 2 said that more coherent policy and legal framework needs to be established to deal with military actions that have adverse environmental impacts. With regards to impact on existing policy, experts mentioned procedures tied to NEPA and the MMPA. According to Expert 1, NEPA is very effective, but it is slowly being chipped away at and in order to maintain its integrity in the future, policy needs to be enforced in the way Congress intended it to be when the law was written. It was also suggested that attention needs to be paid more to the permitting process under the Marine Mammal Protection Act (MMPA) in the future by Expert 4. 3.2.3. Naval ramifications The experts were asked to speculate how the court case will impact the Navy’s practices. Expert 1 said that the case may not

53

impact the Navy’s practices especially since it has difficulty complying with NEPA. Expert 2, on the other hand, felt that the Navy has learned how to do some of its practices in more environmentally-friendly ways due to the litigation but the Supreme Court’s decision may end up causing them to take a step back. Three experts agreed that the Navy’s time in court has been costly, as a result, the Navy will try to avoid future cases by mitigating environmental impacts and adhering more closely to policies including NEPA. The experts were asked to discuss how the case may influence the interaction between the military and marine environment. Expert 2 noted that the case sends the message that the Supreme Court will be hesitant to halt any naval practices because of national security interests. Two experts mentioned that only time will show the impacts on the marine environment from naval interactions. Expert 4 said the Navy will continue to use sonar for training out of necessity and hopefully continue to look at ways to minimize impacts on marine mammals. Expert 5 said that we need to remind ourselves that the Navy has come a long way from its old practices and should be given some credit for the changes it has made. One of the most important questions asked to the experts was whether or not it is possible to reconcile national security efforts with environmental protection. All experts agreed that it is possible to reconcile national security efforts with environmental protection and each gave suggestions as to how this could occur. Expert 4 mentioned the idea of a technological fix to reduce impact by creating other detection strategies for submarines or for marine mammals. Expert 2 said this is not a black and white issue and Expert 3 emphasized that there are competing stakeholders that all need to be taken into account when decisions based on compromise are made. Expert 1 said that policy is a significant mechanism to balance national security and environmental protection and that current policy needs to be enforced. Expert 2 suggested that the US Congress take a more proactive approach towards balancing environmental policy with national security policies. The final factor suggested by Expert 5 was promoting public understanding of environmental issues in general to create more of a sense of value for our natural heritage. 3.2.4. Environmental ramifications Finally, the experts were asked to discuss how the case may impact marine conservation in the future. Four of the five experts agreed that, in terms of marine conservation, the case will have little impact. Expert 3 said that the case will have a negative impact on marine conservation. Two experts mentioned that individual cetaceans will continue to be negatively impacted due to sonar. Expert 4 called for the need for more research into the impacts of sonar on marine mammals. The experts were asked about the more general environmental impact of the court case. The results of this question were very similar to those concerning marine conservation. The experts agreed the Navy will continue training and marine mammals will continue to be impacted. It was noted by Expert 4 and Expert 5 that more research still needs to be done. Expert 1 was concerned about the cascading ecological impacts that could occur due to continual impact which could potentially cause ecosystem collapse. The experts were asked to speculate what the next step is for scientists and environmental NGOs. Expert 3 and Expert 4 said that more scientific research is needed into the exact impacts of sound and sonar on marine mammals, long-term population monitoring and tracking of marine mammals, and more extensive data sharing networks for better research. An important consideration brought up by Expert 4 was that more information is required but this is difficult to obtain without directly exposing marine mammals to these types of sounds which goes against alot of conservation

54

K. Zirbel et al. / Marine Pollution Bulletin 63 (2011) 49–55

practices. The experts agreed that environmental NGOs can continue to have influence on policy especially when equipped with more scientific data to bolster further support. Expert 4 suggested that NGOs also continue to meet with scientists to get accurate information on what is known and what still needs to be known to create effective strategies in the future. Expert 5 suggested that NGOs continue to use the courts as an avenue for change and bring attention to procedural violations of the MMPA, ESA, and NEPA. Expert 2 said that public opinion could be an avenue to pressure the Navy to change by requesting new legislation or better implementation of existing policies from Congress.

4. Discussion A majority of survey respondents (75.2%) do not believe the Navy should be exempt from marine mammal protection regulations in times of peace. Of survey respondents, people on the conservative end of the political spectrum and those who identify themselves as Republicans (the right wing US political party), were more likely to say that the Navy should be exempt (p < .05). This result was not surprising and at least one of the experts suggested that the decision in Winter v. NRDC was along party/political ideological lines with a conservative majority. Those who served in the military were also more likely to say that the Navy should be exempt (p < .05), but more than half of this sub-sample stated that the Navy should not be exempt. Military service may allow an individual access to more military information than the public and an increased knowledge concerning what practices are necessary for training purposes. This may cause these individuals favoring exemption to feel that the Navy should be allowed to make its own decisions regarding how it will follow marine mammal protection regulations. It also may be because these individuals have an increased stake in how the military operates since at one point in time they were involved in its operations. Individuals who have not served in the military may be less knowledgeable about military operations and threats. Conversely, they also may be less comfortable with the Navy making its own decisions regarding marine mammal protection regulations. Future studies should try to determine the possible factors that influence this difference between those who have served and those who have not served. However, it is worth repeating that a majority of the sub-sample of military members still felt the Navy should not be exempt. Understanding which factors influence how people feel regarding Navy exemption or requirement to follow environmental regulations is important to stakeholders who wish to gain public support for their position. For example, this preliminary study suggests that the Navy has relatively higher support from conservatives and those who have served in the military. If future studies have similar results, it would be beneficial for the Navy to try and recruit support from individuals who do not fall into these categories. On the other hand, environmental NGOs could attempt to reach out to unsure individuals and those who are conservative and have served in the military since these are the people who are more likely to support Navy exemption. All of this would require future study that looks into the reasons why individuals say that the Navy should or shouldn’t be exempt. This includes perceived foreign threat, knowledge of military operations, knowledge of marine mammal impact by sonar etc. A majority of respondents (51.3%) were of the opinion that sonar impacts marine mammals; however it was also found most respondents are unsure about how Navy sonar impacts marine mammals. Despite this, a majority of respondents (75.8%) believe that sonar use should be moderated if it does impact marine mammals. If these results represent the general public, it is clear that

more information regarding scientific studies needs to be disseminated in a clear and accessible way. Science is often laden with complex procedures and terms which make it difficult for people to understand and this can be very discouraging. When asked how knowledgeable respondents were about the case Winter v. NRDC, only about a third had heard of the case despite coverage of the case in newspapers and on television news, and only a very small percentage of this sample (1.3%) considered themselves very knowledgeable about the case. This suggests that if the results of this study are validated by future studies, the public is highly unaware of this legal battle and an uninformed public does not promote policy change. The experts were able to provide many intriguing responses to the possible political, legal, environmental, and naval ramifications of the Supreme Court case Winter v. NRDC. The political ramifications of the case were considered to be limited other than deference to the military and federal government concerning policy decisions. With regards to the legal ramifications, the case was seen to have narrow implications due to its focus primarily on military operations. However, it may prove to limit future use of preliminary injunctions under NEPA due to more strict requirements for proving irreparable harm. This standard is far removed from the Precautionary principle espoused in, for example, the Convention on Biological Diversity3 (which however the US has not ratified) and which is a cornerstone of environmental policy making in, for example, Europe.4 NEPA was specifically focused on by a few experts who said that it is an effective piece of legislation when used as intended. With regards to naval ramifications it was suggested that the Navy will likely be more willing to actively engage in mitigation measures to reduce time in the courts. If this proves true, it would be a success for environmental NGOs. Experts felt that marine mammals will continue to be impacted by military sonar in the future. Experts were also asked if it is possible to reconcile national security concerns with environmental protection and all were optimistic. It was suggested that more scientific research into the impact of military sonar and ocean noise in general is absolutely imperative. Ultimately, it is important to open channels of communication between scientists, environmental NGOs, the military, policy makers, and the public regarding the impact of sonar on cetaceans and its relationship with military preparedness. This should include communication about the case Winter v. NRDC. Increasing public knowledge around this issue will allow for the public to become more engaged in the policy process and also future court cases surrounding this issue. As a major source of policy change, the public does have the ability to promote change. Future research should also look into attitudes towards this issue before and after individuals are educated about the issue. This will allow for this conflict to be reduced, the better implementation of existing policy, and the creation of more sound policies in the future. There are limitations in the representativeness of this study for the general public opinion due to the sample size (n-156) and small geographical area. Fairfax County is very close to Washington DC and houses a large number of important national institutions with relations to the military, intelligence, and national security which suggests the possibility of bias. However, results indicate that a majority of individuals (75.2%) believe that the Navy should not be exempt from marine mammal regulations in times of peace. This is a substantial statistic and indicates that future studies into public attitudes towards the Navy sonar issue are warranted especially given the ability of the public to promote policy change.

3 4

Principle 15 of the Rio Declaration 1992. Article III-2333 of the Maastricht Treaty 1992.

K. Zirbel et al. / Marine Pollution Bulletin 63 (2011) 49–55

Acknowledgements No financial support or other funding was provided to any author in order to produce this paper. ECMP has provided testimony on mitigation measures related to cetaceans and high intensity sound sources on behalf of the Natural Resources Defense Council in several court cases related to naval sonar use – the majority of this testimony was subsequently peer-reviewed and published in this journal (i.e., Parsons et al., 2008, 2009). The authors wish to thank three anonymous reviewers for comments on early drafts of this manuscript, which were gratefully received and much improved the final paper. References Andrew, R.K., Howe, B.M., Mercer, J.A., Dzieciuch, M.A., 2002. Ocean ambient sound: comparing the 1960s with the 1990s for a receiver off the California coast. Acoustic Research Letters Online 3, 65–70. Balcomb, K.C., Claridge, D.E., 2001. A mass stranding of cetaceans caused by naval sonar in the Bahamas. Bahamas Journal of Science 8, 1–12. Clark, C.W., Altman, N.S., 2006. Acoustic detections of blue whale (Balaenopteramusculus) and fin whale (B. Physalus) sounds during a SURTASS LFA exercise. Journal of Oceanic Engineering 31, 120–128. Cochran, W.G., 1954. Some methods for strengthening the common v2 test. Biometrics 36, 353–378. Craig, R.K., 2009. Beyond Winter v. NRDC: a decade of litigating the Navy’s active sonar around the environmental exemptions. Boston College Environmental Affairs Law Review 36, 353–378. Cressey, D. 2008. Sonar does affect whales, military report confirms. Nature, doi:10.1038/news.2008.997. Croll, D.A., Clark, C.W., Calambokidis, J., Ellison, W.T., Tershy, B.R., 2001. Effect of anthropogenic low-frequency noise on the foraging ecology of Balaenoptera whales. Animal Conservation 4, 13–27. D’Amico, A.D., Gisner, R.C., Ketten, D.R., Hammock, J.A., Johnson, C., Tyack, P.L., Mead, J., 2009. Beaked whale strandings and naval exercises. Aquatic Mammals 35, 452–472. Eubanks, W.S., 2009. Damage done? The status of NEPA after Winter v. NRDC and answers to lingering questions left open by the court. Vermont Law Review 33, 649–670. Fernández, A., Arbelo, M., Deaville, R., Patterson, I.A.P., Castro, P., Baker, J.R., Degollada, E., Ross, H.M., Herráez, P., Pocknell, A.M., Rodríguez, E., Howie, F.E., Espinosa, A., Reid, R.J., Jaber, J.R., Martin, V., Cunningham, A.A., Jepson, P.D., 2004. Pathology: whales, sonar and decompression sickness. Nature 428, 1–2. Fernández, A., Edwards, J.F., Rodriguez, F., Espinosa de los Morteros, A., Herraez, P., Casstro, P., Jaber, J.R., Martin, V., Arbelo, M., 2005. ‘‘Gas and fat embolic syndrome’’ involving a mass stranding of beaked whales (Family Ziphiidae) exposed to anthropogenic sonar signals. Veterinary Pathology 42, 446–457. Frantzis, A., 1998. Does acoustic testing strand whales? Nature 392, 29.

55

Frantzis, A., 2004. The first mass stranding that was associated with the use of active sonar (Kyparissiakos Gulf, Greece, 1996). ECS Newsletter 42 (Special Issue), 14– 20. Frantzis, A., Cebrian, D., 1999. A rare mass stranding of Cuvier’s beaked whales: cause and implications for the species biology. European Research on Cetaceans 12, 332–335. Fristrup, K.M., Hatch, L.T., Clark, C.W., 2003. Variation in humpack whale (Megapteranovaengliae) song length in relation to low-frequency sound broadcasts. Journal of the Acoustical Society of America 113, 3411–3424. Jepson, P.D., Arbelo, M., Deaville, R., Patterson, I.A.P., Castro, P., Baker, J.R., Degollada, E., Ross, H.M., Herráez, P., Pocknell, A.M., Rodríguez, F., Howiell, F.E., Espinosa, A., Reid, R.J., Jaber, J.R., Martin, V., Cunningham, A.A., Fernández, A., 2003. Gasbubble lesions in stranded cetaceans: was sonar responsible for a spate of whale deaths after an Atlantic military exercise? Nature 425, 575–576. Jepson, P.D., Deaville, R., Patterson, I.A.P., Pocknell, A.M., Ross, H.M., Baker, J.R., Howie, F.E., Reid, R.J., Colloff, A., Cunningham, A.A., 2005. Acute and chronic gas bubble lesions in cetaceans stranded in the United Kingdom. Veterinarian Pathology 42, 291–305. Ketten, D.R. 2005. Beaked whale necropsy findings for strandings in the Bahamas, Puerto Rico, and Madeira, 1999–2002. WHOI Technical Reports.WHOI-2005-09. Woods Hole Oceanographic Institute, Massachusetts. Maybaum, H., 1993. Responses of the humpback whales to sonar sounds. Journal of the Acoustical Society of America 94, 1848–1849. Millennium Ecosystem Assessment, 2005. Ecosystems and Human Well-being: Biodiversity Synthesis. World Resources Institute, Washington, DC. Miller, P.J.O., Biassoni, N., Samuels, A., Tyack, P.L., 2000. Whale songs lengthen in response to sonar. Nature 405, 903. Parsons, E.C.M., Birks, I., Evans, P.G.H., Gordon, J.G., Shrimpton, J.H., Pooley, S., 2000. The possible impacts of military activity on cetaceans in West Scotland. European Research on Cetaceans 14, 185–190. Parsons, E.C.M., Dolman, S.J., Wright, A.J., Rose, N.A., Burns, W.C.G., 2008. Navy sonar and cetaceans: Just how much does the gun need to smoke before we act? Marine Pollution Bulletin 56, 1248–1257. Parsons, E.C.M., Dolman, S., Jasny, M., Rose, N.A., Simmonds, M.P., Wright, A.J., 2009. A critique of the UK’s JNCC Seismic Survey Guidelines for minimizing acoustic disturbance to marine mammals: best practice? Marine Pollution Bulletin 58, 643–651. Rendell, L.E., Gordon, J.C.D., 1999. Vocal response of long-finned pilot whales (Globicephalamelas) to military sonar in the Ligurian Sea. Marine Mammal Science 15, 198–204. Simmonds, M., Lopez-Jurado, L.F., 1991. Whales and the military. Nature 337, 448. Taylor, B., Barlow, J., Pitman, R., Ballance, L., Klinger, T., De Master, D., Hildebrand, J., Urban, J., Palacios, D., Mead, J.G., 2004. A call for research to assess risk of acoustic impact on beaked whale populations. Paper presented to the Scientific Committee at the 56th Meeting of the International Whaling Commission, 29June–10 July 2004, Sorrento, Italy, SC46/E36. Watkins, W.A., Moore, K.E., Tyack, P., 1985. Sperm whale acoustic behaviors in the southeast Caribbean. Cetology 49, 1–15. Zirbel, K., Balint, P., Parsons, E.C.M., 2011. Navy sonar, cetaceans and the US Supreme Court: a review of cetacean mitigation and litigation in the US. Marine Pollution Bulletin 63, 40–48.