Scott Dodd's Blog: Saving Wildlife and Wild Places

New Report Says U.S. Birds in "Widespread Decline," Need Help

2009-03-20T16:41:44Z

Last spring, I found myself entranced by a pair of red-tail hawks building a nest in Riverside Park, just a few blocks from my apartment in New York City. Unfortunately, despite the efforts of their parents and the best wishes of many hawk watchers, the three hatchlings didn't survive, probably because of poison.

It's certainly not unusual for young birds to succumb to the many threats -- natural and manmade -- found in the urban wilderness. But this morning, on the first day of spring, a new report had me thinking of those baby hawks and their fate again.

According to an analysis of 40 years of data, bird populations in the United States are declining at an alarming rate due to climate change, habitat destruction, invasive species and other environmental forces.

U.S. Interior Secretary Ken Salazar called the disturbing news a "clarion call" for action. "If we move forward with a new ethic of conservation, we will be able to restore bird populations," Salazar said at a news conference.

Nearly a third of the 800 species of birds in the United States are endangered, threatened or in decline, according to the report, which is the most comprehensive ever undertaken of birds in North America. But more than that, the decline of birds is a warning sign about the overall health of our environment -- or lack thereof.

Birds are literally the "canary in the coal mine," Salazar said.

Among the report highlights, as reported by Scientific American:

U.S. grassland bird species have declined 40 percent.
Birds in arid lands have declined 30 percent.
39 percent of U.S. birds restricted to ocean habitats are declining.
Some coastal shorebirds are doing well, but many face habitat losses and dwindling food supplies.
Birds in Hawaii face a conservation crisis, with many species on the edge of extinction.

Not all of the news was bleak, however. In some places where conservation measures have been adopted, bird populations are rebounding and even thriving. "We need to protect habitat and aggressively attack climate change with renewable energy," said John Flicker, president of the National Audubon Society.

One place where birds need protection right now is in Canada's ancient boreal forest, where billions of birds -- more than half of North American species -- build nests and raise their young each spring. By the end of summer, they'll head south and snack onbirdfeeders in U.S. backyards.

For many species, the Canadian forest -- teeming with lakes, river valleys and wetlands -- is the only nesting place they've ever known. Yet as NRDC reported last year, attempts to mine and drill the Alberta tar sands for fuel are destroying and fragmenting this precious habitat, resulting in the loss of millions of birds.

You can find out more about the Canadian forest and take action to protect birds from dirty fuel development at NRDC's new Save BioGems site. My hope is that fewer birds have to face the fate of those three hawk hatchlings that I watched perish last spring.

Photo: One of the Riverside red-tails lands on its nest. By Scott Dodd/via Flickr

U.S. Supreme Court deals blow to whales in sonar case

2008-11-13T00:13:22Z

The U.S. Supreme Court handed down its first decision of the term today, and it's not the best of news for whales.

Last month, NRDC and its allies argued before the court on behalf of marine mammals that are threatened by Navy sonar exercises off the Southern California coast. Here's my account of the oral arguments and senior attorney Joel Reynolds' explanation of the legal and moral reasoning behind NRDC's fight. (You can get more background on the case in the video below.)

The Los Angeles Times, which has covered the case closely, reports on today's decision:

The U.S. Supreme Court dealt a defeat to environmentalists today and cleared the way for the Navy to use high-powered sonar off the Southern California coast even if it poses a threat to whales and other marine mammals.

Chief Justice John G. Roberts said the Navy needs to train its crews to detect enemy submarines, and it cannot be forced to turn off its sonar when whales are spotted nearby. "The public interest in conducting training exercises with active sonar under realistic conditions plainly outweighs" the concerns voiced by environmentalists, he said for a 5-4 majority.

Roberts faulted judges in California for "second-guessing" the views of Navy leaders. "Where the public interest lies does not strike us as a close question," he said.

Roberts also questioned whether whales have indeed been harmed by sonar. He said the Navy had been operating off the California coast for 40 years "without a single documented sonar-related injury to any marine mammal."

The Natural Resources Defense Council and other environmental groups strongly disagreed. They say studies conducted around the world have shown that the piercing underwater sounds cause whales to flee in panic. These studies said some whales have beached themselves and have shown signs of bleeding in their ears as a result of high-powered sonar.

Today's ruling lifts a Los Angeles judge's order that required the Navy to turn off its sonar when whales or marine mammals were seen within 1.2 miles of a ship.

The Bush administration had urged the court to take up this case and rule quickly so the Navy could conduct training exercises scheduled in the next few months.

Obviously, this isn't what the folks at NRDC who've worked so hard to protect whales were hoping for. The decision means that marine mammals are more at risk of serious harm -- harm that could be avoided if the Navy would agree to reasonable safeguards and follow the law.

There's some silver lining, though. The Supreme Court's ruling is narrow enough that it leaves in place four of the safeguards imposed by lower courts. And the justices didn't overturn those courts' underlying determination that the Navy had likely violated the law by failing to prepare an environmental impact statement before the exercises.

The Navy doesn't deny that sonar can be deadly to marine mammals, which use their sense of sound for everything from navigation to finding mates. Scientists have established a strong link between sonar use and whale deaths, and the U.S. military's own studies show that an estimated 170,000 marine mammals could be harmed by the Southern California training exercises. More than 500 would suffer permanent injury.

No one's arguing that the Navy shouldn't train its sailors and that the military shouldn't be ready to protect this country from any and all threats. But there are ways to practice that don't put precious marine life in danger. That's all that NRDC is asking for.

Other reports from the court: Opinions on NRDC's "Navy v. whales" case

2008-10-15T17:14:13Z

Last week, NRDC argued before the U.S. Supreme Court, seeking to protect whales and other marine mammals from being harmed by military sonar.

I reported on the oral arguments and tried to provide an observer's perspective. Since then, a lot of other parties have offered their own analysis and expertise. Here's a look at how the case is being perceived in various corners:

Science Daily highlights scientific evidence that sonar is linked to whale strandings -- something the Navy tried to downplay in its arguments to the court. "Sonar is killing more whales than we know about," proclaims Professor Chris Parsons of George Mason University.
SCOTUSblog focuses on the separation of powers doctrine that lies at the heart of the legal questions in NRDC v. Winter and finds some Supreme Court precedents that could sway things the Navy's way. The blog also has a recap of oral arguments.
Hounded, Cowed, & Badgered (an animal welfare law blog) says that using national security arguments to trump environmental laws "is another appearance of the Bush Administration's argument that, in these post-9/11 times, security interests are so surpassingly important that all other interests must fall to the wayside. ... The acceptance of this argument in this case by the Supreme Court would have dire consequences for whales and for all animals protected by federal law."
At change.org, writer Stephanie Ernst asks, "What is the point of passing laws to protect wildlife and the environment when the groups and institutions that cause them the most harm are exempt from obeying those laws?"
The environmental politics blog Red Green and Blue similarly asks: "Are there times when the government (should) be exempt from environmental regulations in the interest of national security? Personally, I say the Navy should find another area to hold training operations. Let the whales swim in peace."
Georgetown law professor Lisa Heinzerling tells The New York Times that NRDC faces "long odds" persuading the justices to uphold the National Environmental Policy Act. The Supreme Court has heard 15 cases under the act, and the plaintiffs have lost them all. Further, she said, there are "just not justices on the court for the most part who are out to save the whales."
Hawaiioceanlaw.com maintains a detailed resource page on the case, with links to briefs and filings. And at the Supreme Court website, you can read the full transcript from last Wednesday's hearing for yourself.
At Discover magazine's Reality Base blog, Melissa Lafsky thinks the case looks bad for whales. "Without clear evidence that Navy missions are causing each and every whale in the sea to throw itself on the beach in a ritual mass suicide, the Court won't be inclined to put the kibosh on training missions that could strengthen our coastal defenses."
For NRR's All Things Considered, Supreme Court reporter Nina Totenberg said that attorney Richard Kendall, arguing NRDC's case, "took the real beating Wednesday" and provides some excerpts. You can also listen to her report from the court.
Science Blog reports that as the Supreme Court was hearing the case last week, scientists at the World Conservation Congress were reporting that even the background noise in our oceans has gotten so loud that it's killing whales. "Some forms of noise pollution are so powerful that 'a whale can be killed outright by the shock,' said Carl Gustav Landin, head of marine programmes for the International Union for the Conservation of Nature (IUCN)."
And as if things weren't bad enough for the whales, the Christian Science Monitor's bright green blog reports that greenhouse gas pollution and ocean acidification could be making the sonar problem even worse, highlighting a newly published study titled: Unanticipated consequences of ocean acidification: A noisier ocean at lower pH. "Unless we curb our fossil fuel use," CSM says, "it's only going to get louder down there."

Previously:
Report from the Court: NRDC and the Navy face off
Who speaks for whales?
Whales get their day in court
More about the case on Switchboard

UPDATED Report from the Court: NRDC and the Navy face off over sonar's harm to whales

2008-10-08T17:34:12Z

Lawyers from NRDC and the U.S. Navy faced tough scrutiny on everything from beaked whale strandings to the separation of powers as they argued before the U.S. Supreme Court this morning.

In a case that could determine whether the Navy is doing enough to protect marine mammals from intense blasts of sonar, the justices peppered the parties with questions on a number of legal and factual fronts.

One of the most entertaining exchanges came when Justice Stephen Breyer asked why the military should be relied on to conduct environmental impact studies -- one of the key requirements that NRDC argues was needed in this case.

"The whole point of the armed forces is to hurt the environment," Breyer said, prompting laughter from the audience of about 250 in the courtroom.

Richard Kendall, who argued on behalf of NRDC, countered that "the whole point of the armed forces is to do the least amount of harm possible to the environment."

"When they go on a bombing mission, do they have to prepare an EIS?" Breyer asked, acknowledging that he was being somewhat facetious.

"No," Kendall replied, adding that NRDC has never suggested that any of the precautions it wants the Navy to take should apply to combat. Instead, the case is all about making sure that whales and other marine mammals don't have to die while the Navy is practicing.

The hourlong hearing covered a lot of ground. Both sides appearing before the court get 30 minutes to make their case and answer the justices' questions -- which started flying within the first couple of minutes of both lawyers' prepared arguments.

Speaking for the Navy, Solicitor General Gregory Garre disputed whether a large number of marine mammals would suffer long-term harm as a result of the sonar exercises. He repeated the phrase "non-injurious, temporary exposures" over and over when Justices Samuel Alito and Ruth Bader Ginsburg tried to nail him down.

But Kendall said the factual assertions the Navy has made about the harm to whales are completely disproven by the military's own environmental assessment (a preliminary report before a full EIS) and expert testimony from marine mammal scientists.

The evidence that sonar has caused beaked whales strandings around the world -- with the whales washed up on beaches bleeding from the ears and brain -- is overwhelmingly supported by scientific studies, Kendall said.

He asked the justices to imagine the noise of a jet engine multiplied by 2,000 times filling the courtroom. That's the same impact that a sonar blast can have on whales, dolphins and other marine mammals, Kendall said.

UPDATES

1:50 PM Here's what I'm sure you really want to know: Does it look like the Navy or NRDC won today? My answer: I haven't got a clue. And I doubt that anyone else does, either.

"I've been doing this a long time, and I've given up reading the tea leaves," Kendall said outside the courtroom after arguing on NRDC's behalf.

The justices had a lot of tough questions for both sides, which is what you would expect in a Supreme Court case. If it were an easy call, why would it wind up in the highest court in the land?

Kendall said the questions are often designed to ferret out what the lawyers are thinking about the case, and tough queries don't necessarily indicate that a justice disagrees with one position or another.

Still, it seemed pretty clear that at least Justice Antonin Scalia has the Navy's back, because he appeared to be assisting the solicitor general with his arguments at a couple of points.

And Justice David Souter appeared to be taking NRDC's side, saying the national emergency that the White House declared to exempt the Navy from environmental laws was in fact "created by the failure of the Navy" to do the proper environmental impact study.

I checked a few news outlets that employ seasoned Supreme Court reporters to see how they're reading the case. The Los Angeles Times said the "justices sounded closely split today on whether environmental laws can be used to protect whales and other marine mammals from the Navy's use of sonar off the coast of Southern California," and the Associated Press also said that the court "appeared divided." The New York Times leads off with the justices who "indicated an inclination to overturn" the lower court's decision protecting whales.

2:40 PM Pictures!

The Supreme Court building in the morning sun. (Did I mention that I had to line up before dawn to get a seat? Fortunately, I had NRDC's Jessica Lass to keep me company):

The line to get in (at one point, there were at least 250 people, most of whom didn't make it in for oral arguments):

NRDC senior attorney Joel Reynolds (right) and Richard Kendall, who argued NRDC's case, speak to reporters after the hearing:

4:30 PM Arguing before the Supreme Court isn't like a presidential debate. If the lawyers don't answer the questions they're asked, or if they try to change the subject, the justices just keep coming back at them. (Of the court's nine justices, only Clarence Thomas didn't ask anything this morning.)

You could tell that both Kendall and Garre had a lot of points they were hoping to make today. But the solicitor general, who argued first, didn't even make it a minute into his argument before Justice Ginsberg cut in with the first question. Kendall had even less time when his half hour came.

Here are some of the main points that the justices kept bringing up (and how the attorneys dealt with them):

Sonar's impact on whales

Ginsberg's initial question concerned the details of the injunction issued by the lower courts to prevent the naval exercises from harming whales. Then Justice Alito jumped in with the second query, asking Garre about the number of marine mammals likely to be killed or injured by sonar blasts -- as opposed to simply "disrupted."

"No marine mammal would be killed as a result of these exercises," Garre declared, citing several times the Navy's "293-page" environmental assessment. A handful of animals -- dolphins, not whales -- could suffer permanent injuries, he said, but the vast majority would suffer only temporary disruptions.

"In lay terms, what does that mean?" Alito asked. Garre said: "There's a learning response. They hear the sound and they go in the opposite direction."

When Kendall got his chance later, he said the Navy's own studies -- as well as scientists around the world -- show that just isn't true. He talked about necropsies of beaked whales whose bodies have been found on beaches, which show hemorrhaging and embolisms from the impact of sonar.

Garre asserted that the Navy has been conducting exercises off California for 40 years with no evidence of mass strandings. There's a simple reason for that, Kendall said later: No one was looking.

"Until very recently," he elaborated to reporters after the hearing, "no one was studying the effects of sonar at all." Now that scientists are aware of the problem, the evidence for it is overwhelming.

What gives them the right?

The outcome of this case may hinge on whether the White House has the authority to grant the Navy an exemption from the National Environmental Policy Act, which it did after a lower court imposed additional safeguards on naval training exercises. (An office of the White House called the Council on Environmental Quality actually issued the ruling.)

Justice Souter wanted to know where in the statute it says that the CEQ can exempt a government agency from preparing an environmental impact statement. "I want to know what the statutory authority is," he repeated several times.

Chief Justice John Roberts followed on that same line by asking why the Navy went to CEQ, which isn't mentioned in NEPA. "It seems to me that CEQ is an odd body to be doing this, as an arm of the White House," Roberts said.

Garre said the government's position is that the Navy complied with the requirements of NEPA by complying with the alternative requirements created by the CEQ.

After the hearing, Kendall told reporters why it's so important that the White House not be allowed to let the Navy ignore NEPA's requirements. The act says government agencies are supposed to study the ways that they can avoid harming the environment before taking action, Kendall said. The Navy didn't do that here.

"If they can blow a hole through NEPA," Kendall said, "that would affect our lives in so many ways."

Why can't you just get along?

Breyer -- who got pretty much all of the morning's best lines -- said at one point that he's no expert in naval warfare or marine mammals, and that neither are the lower court judges who previously ruled in the case.

"Why couldn't you work this thing out?" he asked, rather than forcing the courts to resolve the conflicting evidence over whether sonar harms whales and what protections are good enough.

"The Navy is focused on having its own way or no way," Kendall responded, provoking a, "That's not fair," from Chief Justice Roberts. He said the Navy had already taken its own steps to protect marine mammals. But Kendall said they're too weak.

"We negotiated with the Navy for months and months and months," he said. Only the threat of litigation, and the court rulings in NRDC's favor, will force the military to make the changes that are needed, Kendall added.

"They wanted the blank check they're asking for here today," Kendall told reporters later, "and we simply cannot go that far."

Previously:
Who speaks for whales?
Whales get their day in court
More about the case on Switchboard

Who speaks for whales?

2008-10-08T14:55:00Z

Oral arguments are scheduled to begin momentarily in NRDC's case before the U.S. Supreme Court, and everyone's eager to hear what happens.

A lot of groups have a rooting interest in this proceeding, in which the U.S. Navy is seeking to overturn previous court rulings that would protect whales from harmful military sonar. Not the least of which is the whales, but we won't be hearing from them today.

Instead, here's an introduction some of the major players taking part this morning in NRDC v. Winter:

Richard Kendall
Arguing on behalf of NRDC and other conservation groups, Kendall is a partner in the firm of Irell & Manella, which has devoted considerable pro bono time to the case. He's argued before the Supreme Court before and has represented a lot of big-name clients in the corporate world, including film studios such as Paramount and Universal, TV networks including MTV and CBS, and financial companies such as Citigroup and JPMorgan Chase. As you can guess, his cases have covered a wide range of issues, from banking to entertainment to intellectual property law.

Gregory Garre
The newly sworn-in Solicitor General of the United States represents the U.S. Navy in this case. President Bush appointed Garre to the solicitor post in June, and he was confirmed by the Senate last week and took his oath of office on Monday. Garre has been with the Justice Department since 2005. Before that, he headed the Supreme Court and appellate practice division at the Washington, D.C., law firm of Hogan & Hartson. He has argued 23 cases before the U.S. Supreme Court and was a law clerk under former Chief Justice William Rehnquist.

Joel Reynolds
A senior attorney at NRDC, Reynolds directs the organization's marine mammal protection and southern California ecosystem projects. He has argued cases on behalf of environmental and community organizations at all levels of the federal courts, including the U.S. Supreme Court. He currently specializes in issues of coastal protection, land use, marine mammal protection, environmental justice and transportation. Reynolds is NRDC's point person on the whale case, but a number of other people, including Cara Horowitz, Michael Jasny and Zak Smith, also played important roles.

Donald Winter
So you may have been wondering, exactly who is the Winter in NRDC v. Winter? He's the Secretary of the Navy, which is why his name winds up on the case opposite NRDC. (Technically, the case is Winter v. Natural Resources Defense Council, since the Navy is the petitioner in this case and NRDC et al. are the respondents.) A physicist by training, Winter has been a top executive at companies including Northrop Grumman and TRW and worked at the Defense Advanced Research Projects Agency.

Beaked Whales
OK, they won't be in the courtroom, but these whales -- and many other marine mammals -- have a pretty major stake in today's proceedings. Scientific studies, including peer-reviewed articles in prestigious scientific journals, have shown a clear association between Navy sonar the death and injury of several whales species, with beaked whales being among the most vulnerable. NRDC's Andrew Wetzler writes about this in more detail, and this recent report suggests one possible reason that sonar can be so harmful to whales: It makes them think they're about to be attacked, so they swim for their lives.

Whether they know it or not, for some whales, today's court proceeding may indeed be the fight of their lives. Check back later for updated reports after oral arguments.

Whales get their day in court

2008-10-08T13:45:00Z

The case that's widely thought of as "Navy vs. whales" goes to the highest court in the land this morning, as the U.S. Supreme Court hears oral arguments in Winter v. Natural Resources Defense Council.

I'm lined up outside the courthouse right now to get a seat and report on what happens. No decision will come today -- it could take several months before a ruling is issued -- but I'm interested to hear what the justices ask and how the lawyers make their case.

A quick note: Due to rules banning all electronics from the courtroom, I can't blog about the proceedings in real time. But I'll post as soon as possible after the arguments finish, so check back at this page on Switchboard to find out how it goes.

I'm not a lawyer or scientist, so I'm mainly at the court this morning to provide a layman's point of view. (For scientific and legal expertise about this case, check out previous posts by my colleagues, including senior attorney Joel Reynolds and policy analyst Michael Jasny.)

For those of you who are interested in the case but not up to speed, here's the quick lowdown:

Deadly noise

Intense blasts of sound from military sonar can travel for vast distances underwater, causing disorientation, injury and even death for whales and other marine mammals, which use sound to navigate, find food and mate. (Imagine you're on a hot date and someone's constantly blowing an airhorn in your ear.)

Because of that, NRDC and other conservation groups want to make sure that whales are protected during the Navy's training exercises in the Pacific Ocean. The groups aren't asking that the exercises be stopped -- only that the Navy employ proper environmental safeguards, as required by law.

Steps that NRDC wants the Navy to follow include:

Putting rich marine mammal habitats off limits to training exercises.
Avoiding migration routes, feeding areas and breeding grounds when whales are present.
Turning off active sonar when marine mammals and endangered species are spotted nearby.

Two lower courts have ruled in NRDC's favor. In February, the Ninth Circuit Court of Appeals said the naval exercises off Southern California could continue, as long as the Navy took proper precautions, as NRDC wanted.

Separation of powers

To circumvent the court rulings, the Navy got the White House to declare a national emergency, saying the exercises could go on -- despite the law and the potential harm to whales.

So the question before the Supreme Court isn't really about the danger to marine life anymore. It's now about the separation of powers spelled out in the U.S. Constitution and whether the White House can overturn an ongoing judicial case. So don't expect all of the talk to be about whales when the lawyers go to court this morning. The focus will more likely be on legal precedents and executive authority versus judicial review.

Still, what's ultimately at stake here is the protection of marine mammals, which is why so many people are concerned about the outcome. For more background on NRDC's fight to protect whales, check out our website and watch the video Lethal Sounds, narrated by Pierce Brosnan.

I'll be back with more later.

Updates:
Who speaks for whales?
Report from the Court: NRDC and the Navy face off