The feeding chain within the Washington, DC, ecosystem was as clearly stratified as the Bahamian coral reef. The Pentagon occupied the top of the food chain on Capitol Hill, and the Navy boasted an $84 billion budget in 1999, with 700,000 active-duty and reserve sailors and Marines, as well as 200,000 civilian employees on its payroll. Four Navy colleges and a network of research and development labs added another $9 billion to its annual allocation from Congress. By comparison, Fisheries’ entire budget was a paltry $550 million, with less than $25 million supporting its Office of Protected Resources and with only five staff people devoted to marine mammals.
Rowles was a realist. She and her colleagues in Fisheries leadership recognized that they didn’t have the clout to challenge the veracity of the Navy’s permit applications. A few of the more legally compliant divisions of the Navy had only recently “come in under the permitting tent,” as Fisheries leadership delicately described the process. If Fisheries pushed too hard for fuller compliance, it feared that the Navy would either stop applying for permits or, worse, would go to Congress for a legislative exemption from the Marine Mammal Protection Act and other laws protecting endangered species.
When faced with a mass stranding investigation that promised to be expensive and complex, both scientifically and politically, Rowles was prepared to accept whatever assistance the Navy could provide.
DAY 4: MARCH 18, 2000
Navy Office of Environmental Readiness, Alexandria, Virginia
It was Rear Admiral Larry Baucom’s first day on duty as the new flag officer at N-45, the Navy Office of Environmental Readiness. (Both ONR and N-45 were staffed largely by civilians, but both offices were traditionally headed by an admiral, or “flag officer”—so called because admirals are entitled to fly a flag, most often on the hood of their staff cars.) As a one-star admiral, Baucom’s posting at N-45 was the soft landing before retirement from active duty, en route to a faculty position at a naval college or a more lucrative consulting job inside one of the dozens of military contractors that vied for the chance to hire newly retired admirals.
In the course of his 30-year career, Baucom had commanded a naval flight squadron, an amphibious warfare ship, and, most recently, the nuclear-powered aircraft carrier USS Carl Vinson in the Pacific Fleet. He knew every aspect of naval combat operations, from the air, on land, and at sea. He knew nothing about marine mammals. But he was about to get a crash course.
His principal tutor would be Frank Stone, N-45’s head civilian and liaison with the fleet on the Navy’s compliance with environmental laws, from waste discharge aboard ships to marine mammal protection. Stone was a civilian administrator who had served under a half dozen admirals at N-45, and would likely outlast a half dozen more. Regardless of which admiral was rotating through the leadership, N-45 remained Stone’s fiefdom, a minor principality inside the sprawling bureaucracy of the US Navy. His job was to keep the fleet looking like a responsible environmental steward of the ocean environment—especially in peacetime when the Navy was lobbying hard on Capitol Hill to preserve its funding.
Environmental compliance was a tough sell to the fleet commanders, whose DNA seemed coiled around the twin missions of national defense and defending the status quo. They tended to ignore N-45 until circumstances compelled them to do otherwise. Stone’s colleagues surmised that he had survived at the operational helm of N-45 by doing just enough to keep the Navy in putative compliance with whichever environmental laws were being enforced by Fisheries at the time, without pushing the admirals beyond the limits of their tolerance.
For most fleet exercises, the permitting application involved the Navy conducting an internal Environmental Assessment, a pro forma checklist executed inside the fleet or by an outside contractor. If, in the sole judgment of the Navy, the assessment resulted in a “Finding of No Significant Impact (FOSNI)”—which was uniformly its determination—Stone processed the paperwork and forwarded a copy to Fisheries. By statute, Fisheries was responsible for reviewing the Navy’s Environmental Assessment and Finding of No Significant Impact. In fact, Fisheries had never challenged the fleet’s internal assessments.
Recently, Stone’s primary marine mammal focus had been the North Atlantic right whales. This highly endangered species had a troublesome tendency to migrate close to the shoreline, directly in the path of shipping and other sea traffic, including naval vessels. Every time a right whale died in a collision with a Navy ship, N-45 had to work with Fisheries on an investigation and a report—as well as manage the predictably negative press attention. It became a monumental headache, and for the past year, Stone had been working with ONR and Fleet Command to figure out how to reduce collisions.
Right whales had long been losers in their encounters with humans, going back to the Basque whalers of the eleventh century. Their name derived from their unfortunate distinction of being deemed the “right” whale to hunt because they fed at the surface along the coastline; and because they floated rather than sank after being killed, right whales could easily be towed ashore for flensing. They were large and slow moving—up to 60 feet long, weighing 80 tons—which made them easy targets for harpooners. The American whaling industry almost wiped out the North Atlantic right whales by the end of the eighteenth century. Despite being the first species protected by a worldwide whaling ban in 1937, and being declared an endangered and protected species in 1973, only a few hundred North Atlantic right whales survived into the twenty-first century.
Beaked whales had also been on Frank Stone’s screen lately. Ever since the mass stranding in Greece in 1996, he and Bob Gisiner had become the Navy’s point men on beaked whale research. At the Society for Marine Mammalogy’s biennial meeting in Maui a few months earlier, two of Stone’s assistants had passed out business cards to prospective beaked whale researchers who were interested in conducting population and distribution surveys. Balcomb showed them his recent survey data, but no one called him back.
Stone was one of the first people Gisiner called as soon as Balcomb alerted him to the mass stranding. Over the next 72 hours, Gisiner and Stone were in constant communication. While Gisiner worked with Teri Rowles to get the investigative team up and running, Stone was playing phone tag with the Atlantic Fleet admirals so that he could brief the new flag officer at N-45. He was also trying to track down any Environmental Assessments that had passed through his office in the past three months.
Stone knocked on Admiral Baucom’s door at 0800 hours to introduce himself to his new boss. Baucom was reading the Early Bird, the composite file of news clippings assembled each morning by the Armed Forces Information Service. The Judge Advocate General, or JAG, attorney assigned to N-45 stood in front of Baucom’s desk while the admiral read the clips from that day’s newspapers from the Bahamas and Miami.
“This whale stranding in the Bahamas,” said Baucom. “Is this something I need to be concerned about?”
Stone and the Judge Advocate exchanged a Do-you-want-to-tell-him-or-should-I? look. “Yes, sir,” said Stone. “I’ d say that’s our number one focus right now.”
“Any chance this will stay a local story?”
“No, sir, I doubt it,” replied his attorney.
PART TWO
ACOUSTIC STORM
No sooner does man discover intelligence than he tries to involve it in his own stupidity.
—Jacques-Yves Cousteau
8
The Lone Rangers of the Environment
DAY 3: MARCH 17, 2000
Los Angeles, California
Overnight, Balcomb’s posting on MARMAM pinballed throughout the whale research and conservation universe. One of the first to read it was Michael Jasny, the number two person inside the Marine Mammal Protection Project at the Natural Resources Defense Council (NRDC). An hour past midnight, he was still online trying to ferret out the details when he got a call from a marine biologist at a regional office of Fisheries who shared what he knew about the response team being dispatched to the Bahamas—inc
luding how closely the Office of Naval Research was collaborating with Fisheries on the investigation.
Ordinarily, Fisheries staff didn’t fraternize with NRDC, whose attorneys kept tabs on regulatory agencies to make sure they were doing their job, and sued them when they weren’t. But like many of his scientific colleagues at regional offices, the marine biologist worried that Fisheries leadership in Washington was more interested in protecting the interests of the Navy and commercial fishing than in saving whales. This wasn’t the first time he’ d placed an after-hours call to his friend at NRDC.
Ever since its founding in 1970, NRDC had occupied a special niche in the conservation community: helping to draft, and then enforce, environmental legislation. In the early 1970s, Congress passed a series of sweeping environmental laws and established the Environmental Protection Agency to enforce them. NRDC earned its watchdog reputation as “the shadow EPA” when it successfully sued the Environmental Protection Agency for failing to implement the Clean Air Act and the Clean Water Act. NRDC proved adept at playing the insider-outsider game of environmental policy making: it maintained close-enough ties inside Washington to advance its conservation agenda, then remained vigilant about making sure the laws were obeyed.
With seed funding from the Ford Foundation, NRDC began as a public interest law firm devoted exclusively to environmental defense. Staffed largely by idealistic young lawyers who’ d recently graduated from Yale Law School, its board was drawn from Wall Street law firms and the ranks of science. John Adams, a former federal prosecutor for the US District Court for the Southern District of New York, became NRDC’s first executive director and, for the next 40 years, the paterfamilias to generations of environmental lawyers. Adams cultivated an entrepreneurial culture that encouraged NRDC’s senior attorneys to pursue any high-impact case they believed they could win. As he expressed his management philosophy, “I hire the smartest, most committed attorneys I can find. Then I let them go out and kick ass.”
By the 1980s, NRDC was bypassing federal regulators and going after corporate polluters directly. In a novel application of the “citizen enforcement” provision of the Clean Water Act, NRDC successfully sued the Bethlehem Steel Corporation, on behalf of its mid-Atlantic members, for polluting the Chesapeake Bay. In the eighties and nineties, NRDC brought over 100 such cases against corporations, almost all of them successful.
By adopting a lone ranger model of dragging corporate polluters into court and deputizing its members as a posse, NRDC created a new paradigm for environmental enforcement that combined citizen activism and civil litigation. Along the way, NRDC managed to do for environmental law what Bob Woodward and Carl Bernstein had done for investigative journalism: they made it sexy. As a group, lawyers were generally disdained by the public. But individual gunslinger attorneys who sued polluters on behalf of citizens became heroic figures in the environmental movement.
By the late 1980s, NRDC’s legal eagles had emerged as the most formidable adversaries of corporate polluters and federal agencies that failed to prosecute them. And with more than 100,000 members, NRDC could mobilize public pressure in support of its lawsuits—and raise enough money through membership contributions to stay in court for as long as it took to prevail. When it sued Texaco to compel the company to clean up its pollution of the Delaware River, it took NRDC 20 years to win the case.
In 1990, when NRDC launched a Los Angeles office and was looking for a litigator who could stand up to polluters and developers, John Adams hired a young lawyer who’ d been “kicking ass” in California for more than a decade. Although still in his thirties, Joel Reynolds had earned a reputation as a relentless environmental crusader—based in no small part on a legal battle he lost.
• • •
Riverside, California, where Joel Reynolds grew up in the fifties and sixties, was infamous for having the worst smog in America. In the summer months, a gray-brown haze obscured the views of the surrounding orange groves as the exhaust fumes from Los Angeles’ newly built freeways blew east across the valley and lodged against the base of the San Bernardino Mountains. This inversion layer of smog could hang over Riverside for days at a stretch. By midday, it was difficult—and downright dangerous—to draw a full breath of air.
Despite the 100-degree heat and noxious air, Joel spent most summer afternoons on a public tennis court pounding balls against a wall or against anyone who would brave the smog. When he’ d worn out his father or older brother, he’ d go back to hitting against the wall. Reynolds was a natural athlete with a compulsive streak that helped him hone his talents in any sport he set his mind to. He could also be as competitive and tenacious as it took to prevail. He was typically the last boy standing on the tennis court, the baseball diamond, or the basketball court. In the winter, he would ski until after the last lift had closed. He liked to ski fast, arms flailing, straight down the mountain.
Joel’s only athletic deficit was his poor depth perception. He’ d been born with badly crossed eyes, a condition his mother attributed to an allergic reaction to strawberries she suffered while pregnant. Only one of his eyes could focus at a time. The other wandered, collecting unfocused information, unable to track or fuse with its mate. He was also seriously nearsighted. Joel’s early childhood was a perpetual round of visits to eye doctors who prescribed ocular exercises that never seemed to help. By the age of five, he’ d undergone three operations to reengineer his eye muscles into alignment, but they were only partially successful. He wore thick, clunky glasses through grade school, and his vision was never fully corrected until a follow-up surgery decades later.
Joel was a smart kid who understood that his lousy depth perception meant he’ d never play sports professionally. But he was talented and adaptive enough to compete and win. And winning is what made it worth the effort. Tall, lanky, and graceful, he played with finesse or power as the situation required, and he didn’t wilt under pressure. He enjoyed baseball and basketball, but tennis was the sport he competed in through high school. His tactic was simply to rally his opponent to death, patiently returning any shot across the net until he forced the other guy to make an error. It was an effective stratagem. With no formal instruction, he became the number one seed on his high school tennis team, winning the regional singles championship during his junior and senior years.
Identifying and then relentlessly exploiting his adversary’s weakest point would be the hallmarks of Joel Reynolds’ long-running legal battles, beginning with his first big case after graduating from Columbia Law School in 1978. After completing a federal court clerkship in New York, Reynolds turned down a job offer from a corporate firm where he’ d worked the previous summer. Instead, he accepted a one-year fellowship with the Center for Law in the Public Interest in Los Angeles. It paid only $12,500, but it was the premier public interest firm in the country.
For four years, the Center had been fighting a rear guard action to keep the Diablo Canyon nuclear power plant, being constructed along the stunningly beautiful California coast at San Luis Obispo, from going on line. The other lawyers at the Center had come to view the case as a headache and a loser. When they offered Diablo Canyon to Reynolds, he jumped in with both feet.
By the time Reynolds entered the fray, Diablo Canyon’s construction was 98 percent complete, and its owner, Pacific Gas & Electric Company (PG&E), was well on its way to getting license approvals from the Nuclear Regulatory Commission to start up its two nuclear reactors. In the 17 years since PG&E first bought the 750 acres of pristine coastline as the plant site, Diablo Canyon had become a flashpoint in the antinuclear movement. Demonstrations, lawsuits, and the belated discovery of a major earthquake fault running offshore of the plant had already cost PG&E a billion and a half dollars in overruns. The utility was determined to do whatever it took to get its reactors on line and generating electricity—and revenue.
The controversy had all the elements that fueled Reynolds’ sense of outrage: an irreplaceable and spectacular
natural environment under assault by a huge corporation in league with a captive federal regulatory agency. His local client, the San Luis Obispo Mothers for Peace,1 was composed of scores of smart, determined women and their families who welcomed Reynolds warmly to their cause. Although he realized that the plant was a virtual fait accompli, Reynolds relished the chance to dive into a high-profile, high-impact case. It was 1980, just a year after the partial core meltdown at Pennsylvania’s Three Mile Island nuclear plant. The showdown between the nuclear power industry and the antinuclear movement had come to a head at Diablo Canyon.
The only problem was that Reynolds had never actually practiced law. He’ d recently passed the California bar, but he’ d never filed a lawsuit or sought an injunction, much less attended a regulatory hearing. He knew nothing about nuclear energy, public utility law, or the Nuclear Regulatory Commission. Commuting to San Luis Obispo by motorcycle, he found himself living for weeks at a time in a strange town with no support staff or supervision, faced off against the country’s second largest utility and its army of staff attorneys, outside counsel, consultants, and experts.
Reynolds’ legal strategy for derailing the PG&E juggernaut was simple: poke a stick into its spokes as many times and in as many ways as possible. If one stick broke, find a bigger stick. If that didn’t work, roll a boulder onto the tracks. Whatever slowed down the utility’s march toward an operating license increased the chances that public and judicial opinion would keep it from going on line—or at least make it safer if it did.
War of the Whales: A True Story Page 10