War of the Whales: A True Story
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Over the next several months, Reynolds and Honigman continued to talk and to negotiate. In order to forestall an NRDC lawsuit over LFA sonar, Honigman agreed to have ONR conduct a program-wide Environmental Impact Statement, rather than a perfunctory Environmental Assessment, for its LFA permit application to Fisheries. The Navy had never before undertaken this much more time-consuming, transparent, and rigorous level of risk–assessment for a sound experiment in the ocean.
Reynolds counted it a major victory when, as part of its Environmental Impact Statement, ONR agreed in 1997 to sponsor a three-phase scientific research program to study the impact of low-frequency sound on whales off the coasts of California and Hawaii.1 Previously, there had been very little research on the subject, and much speculation. During the Acoustic Thermometry debate, many marine mammal researchers, including Clark and Tyack, had expressed concerns that low-frequency sound signals could interfere with the hearing-based behaviors that were critical to whales’ survival, including migration, navigation, communication, hunting, and mating. LFA sonar transmissions might cause whales to abandon their feeding grounds, alter their migration patterns, or cease vocalizing. If their auditory environment was swamped by ambient noise, whales could have trouble locating their prey, their predators, or their mates.
As soon as Reynolds felt he had gained some ground, the Navy seized it back. Bob Gisiner, who was in charge of ONR’s research program for its Environmental Impact Statement, appointed Chris Clark as his principal investigator. Gisiner’s nomination of Peter Tyack as co–principal investigator caught Reynolds off guard. When Tyack subsequently decided to accept the position, it was a setback for Reynolds. Not only had he lost his lead scientific advisor but also an expert witness if he decided to challenge Low Frequency Active sonar in court.2
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The Navy’s hope of moving beyond the chant of “A deaf whale is a dead whale” ran aground before its research program even began. In November 1995, at the very beginning of the first phase of Acoustic Thermometry that Munk had agreed to devote to monitoring the impact of low-frequency sound on marine mammals, three dead humpback whales washed ashore on the California coastline at Half Moon Bay. One of the whales was buried quickly, and the other two drifted back out to sea, so no cause of death was ever determined. When the media reported the whale deaths—and when Scripps soon resumed the testing—an already aroused public turned its outrage on the Navy’s proposed scientific research program. The most vocal dissidents denounced the research, which would use the Cory Chouest to test the behavioral effect of low-frequency sound on gray, blue, fin, and humpback whales, as irresponsible and dangerous.
The confrontation between the public and the Navy came to a head in Hawaii, where activists organized to halt the Navy’s offshore sound tests. A coalition of animal welfare and environmental groups went to court to prevent the experiments during the local humpback breeding and calving season. They urged NRDC to join their lawsuit.
Reynolds was reluctant to sue to prevent a research program he felt might yield important missing information about the impact of low-frequency sound. More to the point, he didn’t believe there were strong-enough legal arguments to win an injunction. As a result-oriented litigator, Reynolds never undertook a lawsuit merely to generate publicity. He was determined to build the strongest possible science-based case he could marshal before going to court against Low Frequency Active sonar. If not suing to block the Navy’s scientific research program meant that he had to take flack from hard-core activists on his left flank, Reynolds accepted it as a small price to pay for moving Navy research out of the Cold War shadows and into the daylight of the Fisheries permitting process.
As Reynolds had predicted, a district judge ruled against the Hawaiian lawsuit. That’s when the nonlawyers took up the fight. Ben White of the Animal Welfare Institute called on the public “to join me in harm’s way by forming a human wall of divers between the Navy and the whales.” White proclaimed, “The time has come to literally put our bodies on the line to stop this unprecedented sonic attack on humpback whales. If the United States Navy insists on going forward,” he said, “they may well kill their own citizens as well as whales.”
As a safety precaution, Clark’s and Tyack’s research protocol required that the LFA sound signal be shut down whenever swimmers were sighted in the water within a mile of the Cory Chouest. Back in 1993, during Magellan I sea tests in the Mediterranean, the French government complained to the US Navy that LFA sonar had disturbed recreational divers 220 miles away and might be implicated in the death of another diver. Subsequent diver studies by the US Navy found that exposure to LFA transmissions above 130 decibels induced vibration in the lungs, abdomen, head, and arms. One diver exposed to 150 decibels said he “felt like being between two catapults on an aircraft carrier” and that it was “much greater in intensity” than any of his previous exposures to active sonar.3
Ben White failed to recruit a “human wall of divers.” But he did find a few stalwarts to heckle the Cory Chouest from small boats and dive into the water with him when it started transmitting sonar. The Navy had to postpone the tests and reduce the phase-three exercises from 21 days to 10. The shortened test produced very little data and no apparent deaths, either cetacean or human. Reynolds appreciated that Ben White’s style of gonzo activism energized public opposition. And by staking out an abolitionist position, activists like White motivated the Navy to negotiate with mainstream legal groups such as NRDC.
NRDC had a history of being the first to confront an environmental threat, only to subsequently be perceived as an inside player and rebuked by younger, more radical wings of the movement. Sometimes it was a useful distinction. Back in the 1980s, both NRDC and Greenpeace were pressuring Office Depot to stop sourcing its paper products from old-growth forests in the Pacific Northwest. NRDC was trying to reach a settlement with top management rather than file a lawsuit that could drag on for years. During a critical phase in the negotiations at Office Depot’s Atlanta headquarters, Greenpeace demonstrators climbed to the roof of the building and unfurled an enormous banner reading, “Office Depot out of the Forest!” Then they chanted the slogan through bullhorns as a crowd of onlookers and journalists gathered on the sidewalk. While Office Depot management watched the melee unfolding outside the conference room window, the NRDC attorney told them, “You can deal with me, or you can deal with them.” Office Depot decided to accept NRDC’s proposed settlement.4
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When the Navy started releasing its LFA sonar research findings in the late 1990s, it only added fuel to the controversy. The meaning of the data varied depending on which scientists interpreted them. Gray whales swam away from the low-frequency sonar signal but appeared to resume their migration a few miles upcoast from the sound source. Blue and fin whales vocalized less in the presence of sonar sounds; humpback whales suspended their singing during transmissions but resumed singing when the noise stopped. Low-frequency sonar appeared to change the migration and communication behaviors of baleen whales, at least temporarily, but the significance of the disruption was open to debate. Not surprisingly, the Navy researchers minimized its impact.
The Navy’s efforts to portray LFA sonar as benign and nonlethal collided head-on with the stranding of 12 beaked whales along the Greek coast during NATO naval exercises in 1996. NATO’s internal investigation disclosed that its exercises included both low- and medium-frequency sonar transmitting at up to 228 decibels. In 1998 Alexandros Frantzis, the Greek veterinarian who had examined the best-preserved organs among the stranded animals, published his conclusion regarding the cause of the strandings in the journal Nature: “Although the available data in 1996 could not directly prove that the use of active sonars caused the mass stranding in Kyparissiakos Gulf, all evidence clearly pointed to the Low Frequency Active sonar tests.”
The US Navy dismissed Frantzis as “merely a veterinarian”—despite the fact that its own leading marine mammal expert, Sam
Ridgway, was also a doctor of veterinary medicine. What the Navy couldn’t deride or ignore was the growing concern among marine scientists that naval sonar posed a potential threat to whales.
Reynolds hoped the Greek stranding would mobilize the public and the scientific research community in opposition to military sonar. To raise awareness of the issue, he began accepting invitations to speak at scientific conferences such as the Acoustical Society of America and the Society for Marine Mammalogy. Scientists were initially suspicious of an attorney in their midst. If naval sonar had been causing mass strandings, they insisted, researchers in the field would have made the connection. What did Joel Reynolds, a lawyer, know about whales, and what was he doing at a scientific conference? Most were uneasy about taking a definitive position in a new area of inquiry, preferring to withhold judgment on LFA sonar until there was consensus among their peers. And since the majority of them relied on Navy funding for their research, they were understandably reluctant to bite their sponsor’s hand without indisputable evidence.
Reynolds felt stymied by how invisible and inaudible ocean noise remained to everyone but the animals it was imperiling. No one had ever compiled an accessible and comprehensive survey of how much industrial noise was being dumped into the oceans, from what sources, and at what cost to marine life. He realized that if he wanted to arouse the public, the policy makers, and the scientific community to action, he needed to educate them first.
Reynolds gave the assignment to the best researcher and writer on his small staff, Michael Jasny: write a report on noise in the ocean that is authoritative enough to pass muster with scientists, but keep it accessible to journalists and citizen activists. Jasny dove in. A year later, in 1999, NRDC published Sounding the Depths: The Rising Toll of Sonar, Shipping and Industrial Ocean Noise on Marine Life. It was the PhD thesis that Jasny never got around to writing at UCLA. In it, he managed to synthesize all the available research on the three most prevalent sources of man-made ocean noise: commercial shipping; oil and gas exploration; and military sonar.5
Jasny’s report documented how chronic noise pollution in the ocean—what Chris Clark dubbed “acoustic smog”—had been doubling every decade. The biggest contributor was international shipping. As global trade proliferated in the second half of the twentieth century, so did the numbers of propeller engines and increasingly large cargo vessels in the ocean. Ten thousand supertankers crisscrossed the oceans, each emitting up to 190 decibels of sound at their source. Another 40,000 large cargo vessels created a cacophony of low-frequency noise. An armada of container ships, ferries, ocean liners, hydrofoils, tugboats, motorboats, and Jet Skis blanketed the oceans with a steady drone that threatened to mask the ability of whales to hear and be heard by each other.
After shipping, the most significant source of chronic sound pollution was the oil and gas industry. Early in the twentieth century, oil and gas prospectors set off underwater explosives to identify reserves hidden beneath the ocean floor. By midcentury, high-powered air guns had replaced dynamite as their explosive of choice. Rows of air-gun arrays were towed behind boats on milelong cables, and then fired repeatedly toward the bottom of the ocean in search of subterranean oil. The acoustic blast of the air guns ricocheted off the ocean floor, rebounded again off the surface, and back and forth and up and down until the sound energy finally dissipated. The noise from the air-gun arrays reached 260 decibels, making them the highest-intensity industrial sound on the planet. By the end of the twentieth century, every corner of the world’s oceans was besieged by the volleys of air guns, their continuous thud audible hundreds and even thousands of miles away. Once the air guns located oil reserves, the noisy work of extraction began: platform construction, pile driving, dredging, and oil drilling and pumping and processing and shipping. Each step in the production chain dumped more noise into the ocean.
By comparison with the shipping and oil industries, naval sonar had been an acute, rather than chronic, source of noise in the ocean. But now with the US Navy’s planned deployment of Low Frequency Active sonar across the globe, and the proposed deployment by several European navies as well, the oceans were about to be subjected to another chronic source of low-frequency noise pollution. Sounding the Depths was the first layperson’s explanation of how military sonar operated, which national navies were deploying it, and how much acoustic energy it added to the oceans’ acoustic load.
Sounding the Depths also catalogued the ways that industrial and military noise threatened whales and other marine life. In addition to chronicling the growing number of mass strandings linked to naval sonar, the report detailed the range of nonlethal harm caused by sound in the sea. Emerging research suggested that every manner of marine life was vulnerable to noise pollution, including fish, invertebrates, and even coral.
Reynolds was delighted that Sounding the Depths garnered significant attention from the media and the scientific community. But it did nothing to change the fact that he had very little recourse to stem the rising tide of industrial noise pollution in the ocean through legal action. With no ocean noise statutes on the books, and no international enforcement agencies, intercontinental shipping was immune from any lawsuits NRDC could bring. Meanwhile, oil and gas companies had armies of lobbyists on Capitol Hill, close ties with Fisheries, and a bottomless legal war chest.
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As he geared up for what felt like an inevitable legal confrontation with the Navy over LFA, Reynolds was glad he’ d added Jasny and Wetzler to his team. Between monitoring Navy sonar and managing the rest of his caseload, he worried about becoming overextended. He didn’t want his second marriage to fail from neglect as his first one had.
As soon as he’ d moved to Los Angeles in 1980, he’ d married his college sweetheart, Linda—and promptly immersed himself in the years-long battle to defeat Diablo Canyon. While Joel hopscotched between administrative trials in San Luis Obispo and circuit court appeals in Washington, Linda sat alone in their apartment in Venice, California, watching him being interviewed on the evening news and wondering if she would ever get her husband back. As months and years passed, she watched their marriage recede into a sea of depositions and hearings. Even when he was home, Joel’s head was filled with filing deadlines and trials. Everything had become a blur of work. Joel’s work.
When Joel surveyed his life after Diablo Canyon, it was hard for him to mark the point where Linda had become lost to him. It was all a blur. He’ d resisted her overtures to have children because he wasn’t ready. He hadn’t even been around and available for the big breakup scenes. Eventually Linda had accepted reality and moved on to a better marriage to someone less subsumed by his work.
Reynolds met his second wife, Susan, shortly after he joined NRDC in 1990. They married six months after their first date, following a torrid courtship between Los Angeles and New York, where Susan worked as director of publications in NRDC’s headquarters. Like many organizations, NRDC had a policy against married couples working together. So Susan resigned her position and moved to Los Angeles.
As often happens, the “opposites attract” physics of courtship became the focus of tension early in their marriage. Susan was a consummate East Coaster. Having grown up on the Upper East Side of Manhattan, she attended the exclusive all-girls Spence School before moving on to Middlebury College in Vermont. She then returned to Manhattan to work at the New York Review of Books. Joel was enamored of her beauty, brains, and literary passion. To Susan, his blend of equanimity, affability, and intense idealism personified the best of the West Coast.
But the move to California, where she knew no one, left Susan feeling lonely and depressed. Joel remained immersed in his cases, as well as what felt to Susan like an endless stream of work retreats, NRDC benefits, and donor cultivation trips—none of which included spouses. Though she was proud of his accomplishments, Susan felt excluded from Joel’s work life, and insecure about him hobnobbing with Hollywood movie stars and studio heads, several of wh
om served on NRDC’s board. She struggled to establish herself professionally while juggling the demands of mothering their three young children.
When she finally secured a staff position as a book reviewer and columnist for the Los Angeles Times, one of her colleagues asked her, “What’s it like to be married to Neil Armstrong?” To Susan, it sometimes felt as though her husband was an astronaut. He certainly orbited in a loftier social realm than she did. In truth, she was temperamentally ill suited to be the wife of a celebrity lawyer in a glitzy town like Los Angeles. She dreamed of the family moving back east, but Joel insisted that California was where he needed to be for his work.
The mood at home grew increasingly tense and argumentative. Their fights became more frequent and more punishing. Joel had always been a fixer, but he didn’t know how to fix his marriage. More and more, he compartmentalized his emotional life, walling off the pain of his fractious marriage from the good times he managed to preserve with his kids. Though he continued to work long hours, he was committed to being home for dinner and putting his children to bed at night. He adored his two daughters and son, and reveled in sharing his passions with them: music, sports, and the glory of California’s wild places.
His colleagues understood that he had “problems at home,” but no one knew the depths of his despair. Joel poured even more of himself into his work and became more determined than ever to rescue whatever he could of the planet’s dwindling natural treasures.
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By the winter of 2000, after five years preparing its Environmental Impact Statement, the Navy was finally ready to apply to Fisheries for a permit to deploy LFA sonar around the world. Then the whales came ashore in the Bahamas—and the Navy’s carefully constructed case for safe sonar was thrown into disarray.