Reynolds’ life became an adrenaline-fueled blur of work, stress, and elation, as he scrambled to put together a case and run it with no money, staff, or experience. He asked for advice wherever he could find it: about deposing experts, cross-examining witnesses, filing lawsuits, and arguing appeals, the physics of pressurized water reactors, quality assurance, nuclear risk assessment, emergency preparedness, and the differences between Westinghouse and Babcock & Wilcox reactor designs. And he had to learn it all inside a fishbowl, because the administrative trials were conducted in front of packed hearing rooms and covered daily by the Los Angeles Times and California news stations.
Reynolds found no shortage of safety violations to pursue, from design and construction problems to evacuation plans that ignored the possibility of an earthquake. He filed lawsuits challenging the loading of the radioactive fuel, testing of the plant, and then operation. In August 1984 the court of appeals in Washington, DC, blocked the operating license the Nuclear Regulatory Commission had issued to PG&E—an order Reynolds successfully defended in his first appearance before the US Supreme Court. But two years later, in a 5–4 decision written by Judge Robert Bork, the court of appeals upheld the Commission’s issuance of a full-power license for Diablo Canyon.
Though he’ d lost a long, hard-fought campaign, Reynolds had the satisfaction of knowing that by the time it finally went on line, Diablo Canyon was the most rigorously reviewed nuclear plant in the country. And PG&E was $5 billion over budget. Any utility that might consider building a nuclear power plant would worry that Joel Reynolds, or someone like him, would tie it and its profits up in court for a decade or more. For the next quarter century, no utility in America dared to try.
Regardless, the Diablo Canyon defeat would haunt Reynolds for as long as its twin containment domes loomed over his beloved California coastline. He resolved to carry the tough lessons of Diablo Canyon into future battles: If you let yourself be outmanned and outgunned, you’re likely to lose. Be skeptical of government regulators, since they’re likely to become captive to the interests they’re supposed to police. You can’t win every fight—in fact, if you’re always winning, you’re not taking on tough-enough battles—but do everything you can to improve your odds of winning.
He moved on to win a string of legal victories, both before and after he joined NRDC in 1990. He sued cities and counties to clean up sewage discharges into Santa Monica Bay. He blocked construction of incinerators and prisons in low-income neighborhoods that opposed them. He secured lead screening for all poor children in California, and near his hometown of Riverside, he sued for cleanup of the Stringfellow Acid Pits, one of the largest toxic waste dumps in the country.
Reynolds with his son, Sam, in 1992, two years after he joined NRDC.
It wasn’t until 1994 that Reynolds began butting heads with Fisheries—and with the US Navy—over threats to whales and other marine mammals along the California coast. For several years, he was the only person at NRDC working on whale issues. But he was determined not to fight solo against well-armed adversaries, as he had on Diablo Canyon.
Reynolds in 1994, when he first sued the US Navy and blocked its explosives testing in the waters adjacent to Channel Islands National Marine Sanctuary off the California coast.
When Reynolds found funding to staff up his marine mammal program, he recruited Michael Jasny to the fight. Or more precisely, Jasny enlisted. After graduating from Harvard Law School, Jasny had gone back to school to study his first love, English literature. Midway through his PhD program at UCLA, Jasny started hearing about the lawsuits that Reynolds was filing, and winning, across town. He couldn’t resist stopping by NRDC’s office to introduce himself and offer his services. Reynolds needed a young gun who could keep up with him intellectually, master both the legal and scientific complexities of marine mammal law, and write for judges and for the lay public with equal persuasion. Jasny filled the bill. And he was whip-smart enough to recruit and work with scientific experts in bioacoustics and marine mammalogy.
As a temperamental counterpoint to Jasny, Reynolds also hired Andrew Wetzler, an associate at the whitest of white-shoe law firms: Cravath, Swaine & Moore. Where Jasny was intense and passionate, Wetzler was relaxed and even-tempered. A religious studies major at Brown University before diving deep into environmental philosophy and then law school, he was as steadfast and as tireless as a Clydesdale. He clinched his job interview with Reynolds—an inveterate workhorse himself—when he remarked, “I haven’t eaten at home in two years. I eat all my meals in the Cravath dining room.”
After his late-night call from his friend at Fisheries, Jasny barely slept. An obsessive perfectionist and sweater of details, he soothed himself by working hard, and then harder. Early the next morning, he was parked outside a marine supply store in Marina del Rey, waiting for it to open. He bought its largest nautical map of the Bahamas, mounted it on foam board, and hung it on his office wall. By noon, the map was dotted with color-coded pushpins marking every beached whale by species and location and time of stranding. By day’s end, he and Wetzler had also mapped every US naval installation within 500 miles of Abaco.
Jasny was ready to brief his boss. But first he had to track him down.
9
Joel Reynolds Among the Friendlies
MARCH 17, 2000
Laguna San Ignacio, Baja Peninsula, Mexico
For the first time in years, Joel Reynolds was enjoying a few days off.
NRDC’s five-year battle to save the last pristine nursery of the California gray whale from industrial development had recently come to a sudden, unexpected, and victorious ending. So while Ken Balcomb was cutting off beaked whale heads in the Bahamas, Reynolds was savoring the playful company of gray whale mothers and their calves.
Each winter, as they have for millennia, hundreds of pregnant gray whales migrate 6,000 miles from their feeding grounds in the Bering Sea of Alaska to the lagoons of central Baja to give birth. After two months of nursing and rearing their newborns in the sanctuary of the lagoons, the mothers lead their calves out into the Pacific Ocean for the return trip to Alaska—the longest annual mammal migration on the planet.
Balcomb had to wait his whole career to reach out and touch a live beaked whale. But the gray whales of Laguna San Ignacio had been inviting human contact for three decades.
Beginning in 1972, and continuing each winter since, the local whales broke the mold of mammal behavior. Just when most mothers are most protective of their young—soon after giving birth and before their calves are weaned—the mother whales of the lagoon initiated close encounters with humans. The enigmatic phenomenon of “friendly whales” baffled researchers and delighted the strictly controlled number of eco-tourists permitted inside the lagoon. No one could explain this paradoxical behavior among wild whales, which occurred nowhere else on earth.
Reynolds would never forget the first time he sat inside an idling motorboat and watched with excitement and alarm as a 30-ton, 40-foot gray whale and her calf approached. The mother whale was twice the size of the small boat, or panga, which she could easily have capsized or crushed with a wave of her fluke. Just as a collision seemed imminent, the whale deftly slalomed alongside the vessel and exhaled a misty whoosh of air through its blowhole. She raised her head just enough to lift one eye out of the water and stare up at Reynolds. When he extended his hand to touch the whale, the mother guided her two-ton calf forward to receive it. Then she sidled up alongside the boat and invited caresses herself. Eventually the whales disengaged and slid below the surface of the lagoon, leaving barely a ripple in their wake.
Over the course of the campaign to save Laguna San Ignacio, Reynolds had often deployed the power of these transformative encounters to tactical advantage with visiting politicians, scientists, journalists, and NRDC donors. Hardened businessmen were routinely reduced to childish glee, and serious scientists dissolved into wonderment and uncontrolled laughter. They all wanted a photo of themselves leaning over
the edge of the panga to kiss the barnacled giants or to stroke the soft brush of baleen inside their open mouths.
For Reynolds, the whale lagoon was the perfect antidote to the smog, noise, and congestion of Los Angeles. The lagoon was only 700 miles south of LA, but to get there, he had to take a bus to Tijuana, Mexico, fly halfway down the Baja Peninsula in a prop plane, land on a dirt runway carved out of scrub desert, take a van from the airstrip to a boat launch at the far end of the lagoon, and travel by boat to a tent camp perched on the shore. The absence of human imprint was palpable. No electricity or phone lines. No plumbing, cars, cell phones, or internet connection. The nearest paved road lay 50 miles to the east. The entire lagoon was wrapped in silence, save for the rush of the wind and the audible whoosh of whales spouting. On moonless nights, the camp was as dark as a bat cave—except for the stars that hung so low and bright overhead he felt he could pluck them out of the sky. And, of course, he really could reach out and touch the whales.
After a day among the “friendlies,” it was easy for Reynolds to forget that Laguna San Ignacio was the site of the most ruthless whale hunt in history. In the winter of 1857, American whaling captain Charles Melville Scammon heard from local fishermen about the unmapped Baja lagoons where California gray whales nursed their young in the calm, warm waters. Sandbars guarded the entrance of the lagoons against killer whales, the grays’ only natural predators. As soon as Scammon figured out how to breach the sandbars at high tide and enter the whale nursery, the rest was easy. After anchoring his ship, the Ocean Bird, at the mouth of the 16-mile-long lagoon to bar any escape, Scammon lowered three whaleboats into the water. The boats moved into position between mother and calf, causing the mother to surface in defense—and bringing her within easy range of the harpooners.
Unlike their “friendly” descendants, the gray whale mothers were ferocious when attacked, lashing out at their tormentors with barnacled fins and flukes, and earning the nickname “devilfish” among the whalers who stalked them. As Scammon himself observed in his ship’s log:
When the parent animal is attacked, they show a power of resistance and tenacity of life that distinguish them from all other cetaceans. Many an expert whaleman suffered in his encounters with them, and many a one has paid the penalty with his life.
In the course of a morning’s hunt, Scammon’s harpooners could kill a dozen pregnant and nursing mothers, planting red flags in the floating carcasses to guide the Ocean Bird to the kill. Within hours, their blubber was flensed and cooked down to lamp oil. The flexible baleen was harvested from their mouths to feed the current fashion in corset stays and umbrella ribs. By day’s end, Scammon observed, the waters of the lagoon had turned the very color of the claret he drank at dinner.
The whale calves were spared the harpoon. They didn’t have enough blubber or baleen to merit hunting. But without mothers to nurse them, they starved to death within the week.
It took Scammon just five winter hunts to empty the Baja lagoons of whales. During the 1850s, 20,000 gray whales migrated past the California coastline each year. Twenty years later, only 2,000 made the passage. By then, Scammon had made his fortune and retired from whaling to become a gentleman naturalist. He authored the first comprehensive text on marine mammals of the Pacific Coast, in which he ruefully recorded—without a trace of irony—the passing of the gray whale:
The large bays and lagoons, where these animals once congregated, brought forth and nurtured their young, are already nearly deserted. The mammoth bones of the California gray lie bleaching on the shores of those silvery waters, and are scattered among the broken coasts from Siberia to the Gulf of California; and ere long it may be questioned whether this mammal will not be numbered among the extinct species of the Pacific.
Left for dead, the California gray whale population rebounded at the end of the nineteenth century, only to face annihilation again with the advent of exploding harpoons and steam-powered whaling ships. By 1930, researchers estimated the survivors in the dozens. Other gray whale populations fared no better. North Atlantic grays were hunted to extinction by 1800, while only about 100 West Pacific gray whales survived off the coasts of Japan and Korea. In 1937, gray whales became the first protected species under the newly drafted International Agreement for the Regulation of Whaling.
Thanks to the ban on their hunting, California grays staged a dramatic comeback in the second half of the twentieth century. After they were protected as “threatened” under the US Endangered Species Act in 1973, their population swelled to an estimated 18,000. Laguna San Ignacio was once again home to nursing mothers and calves. Soon the whale lagoon became a magnet for whale researchers and a model of sustainable eco-tourism. In 1994, gray whales were the first federally protected species of whale to be delisted.
Then, just a month after the gray whales were removed from the endangered species list, the Mitsubishi Corporation, along with its Mexican government partner, announced plans to build the world’s largest industrial saltworks on the shores of Laguna San Ignacio. Mitsubishi wanted to convert the natural salt flats bordering the lagoon into a 116-square-mile matrix of dikes and evaporation ponds. Diesel pumps operating 24 hours a day would siphon seawater out of the lagoon and into the ponds at a rate of 6,000 gallons a second—about 30 Olympic-sized swimming pools of water per minute. The seawater would then evaporate, leaving a stockpile of 7 million tons of crystalized industrial salt a year.
Mitsubishi’s plan was to store billions of gallons a year of toxic by-products of the salt distillation process in retaining ponds that would discharge through a diffuser into the Bay of Whales to the west of the lagoon—unless the holding ponds leaked toxins directly into the lagoon, as they had at the Mitsubishi saltworks to the north, causing fish die-offs and major turtle kills. Mitsubishi and the government promised jobs, roads, schools, and a hospital in the neighboring town of Punta Abreojos.
There was only scattered opposition to the announced plan. Unlike America and Europe, Mexico had little in the way of a grassroots environmental movement. “Save the Whales!” had not yet entered the local lexicon. A group of artists and intellectuals led by poet Homero Aridjis in Mexico City organized to protest the development plan. Aridjis contacted Jacob Scherr, head of NRDC’s international programs, and Reynolds, who ran its Marine Mammal Protection Project, to ask for help.
Reynolds never shied away from confrontations with big corporations and government agencies. But Mitsubishi was unlike any company he had ever gone up against. Mitsubishi wasn’t simply a goliath of a multinational corporation. It was Godzilla.
Mitsubishi’s corporate family tree had roots reaching back to the beginning of the twentieth century, when it first supplied warships and fighter aircraft to the Japanese Emperor. The Mitsubishi Trust had constructed and owned most of Japan’s vast whaling fleet, and its whale oil production became an important source of hard currency for the government during the military buildup to World War II. After the war, with the active encouragement of American general Douglas MacArthur, Mitsubishi helped revive whaling and promoted whale meat as a protein source for the starving, conquered empire—enshrining whale meat as the ultimate comfort food in the hearts and souls of generations of Japanese. As late as the mid-1960s, Mitsubishi had lobbied the Mexican government to build a whaling station on the Baja coast, despite the gray whale’s long-standing protected status. In the 1970s, Mitsubishi diversified into cars, steel, electronics, banking, mining, forestry, and consumer products, from Kirin beer to Nikon. By 1995, with 28 corporations and 160 subsidiaries, offices in 85 countries, and annual revenues two times Mexico’s annual budget, the Mitsubishi Group had grown into the world’s largest trading company.
Veterans of Mexican politics advised Reynolds and Scherr that the saltworks project was unstoppable. NRDC had run successful international campaigns in Canada to protect old-growth forests against industrialization. But Mexico’s single-party government was widely viewed as a corrupt and business-friendly oligarchy unc
onstrained by federal environmental laws like those in the United States and Canada. Mexican conservation laws and agencies had little credibility and an anemic history of enforcement. And the only Mexican opponents—the kind of grassroots organization that NRDC needed to partner with on international campaigns—were a small group of writers and artists who lived 1,000 miles from the lagoon.
Finally, NRDC had no legal standing in Mexico. If the federal government wanted to enter into an agreement with a foreign corporation, there was nothing NRDC could do in court to challenge it. And since there were no American companies involved, it couldn’t file suit in American courts.
Reynolds was a pragmatist who avoided quixotic crusades. He had racked up an impressive winning streak over the previous decade by picking his spots and doing his legal due diligence before committing to a case. Winning was how you built momentum, created leverage, and instilled fear in potential adversaries. The more cases you won, the more likely your next opponent would be to negotiate rather than go to court. In the high-stakes arena of environmental law, losing was more than a personal and professional disappointment. It meant that a highway got built across vital wetlands or an endangered species was shoved closer to the abyss. And losing a lawsuit risked setting a damaging legal precedent that could sabotage environmental actions for decades. Any way you calculated it—in time, money, resources, or credibility—losing was an unaffordable luxury. And this campaign had all the earmarks of a loser.
But then Reynolds traveled to the lagoon and spent a day with the whales. After that, he never considered walking away from the fight for Laguna San Ignacio.
Unlike so many environmental activists who came of age in the seventies, Reynolds never became jaded about the movement, or the legal system. He remained a true believer in the power of people—especially in league with creative lawyers—to save the planet. Many of his law school professors loved the law for its intellectual elegance and exactitude. For Reynolds, the law was only a means to an end. He reserved his love for the shrinking wild places of California, and for the animals that depended on wilderness to survive. His devotion to the land gave Reynolds the stamina he needed for long, drawn-out battles. And it fed his outrage at the arrogance of greedy corporate polluters and the complicit government agencies that abetted them.
War of the Whales: A True Story Page 11