December 16, 2017 – This essay covers another angle of public concern about the US Navy in the Pacific Northwest. But our region isn’t alone in its frustration with a military hell-bent on expanding into civilian areas without regard for its neighbors.
Besides being intuitively obvious, the phrase “best available science” is also a legal directive in the Endangered Species Act, the Marine Mammal Protection Act, and the Magnusen-Stevens Fishery Conservation and Management Act. Basically, all of them instruct federal agencies to use the best available scientific and commercial data when making decisions under those laws.
As stated above, the meaning of this phrase might seem obvious, and most of us might assume that its use is being enforced by courts, but that would not be accurate. There have also been dozens of efforts by Congress to politicize it by allowing political appointees, rather than the scientific community, to determine what is best available science in their agency decisions. In 2017 alone, Republicans introduced 63 proposals to undermine species protection and force agencies to abandon the requirement to use “best available science” in their decisions.
So far, legislative challenges to weaken, limit, burden or stop use of best available science have mostly failed, except for a two-sentence paragraph that was inserted into a massive appropriations bill back in 2001, by a legislative aide who was anti-regulation. Nobody saw it until it was too late. The 2-sentence Data Quality Act is heavily biased toward industry and exploitation, and is a potent tool for beating back regulations that are based on science.
In domestic examples of the consequences, the Competitive Enterprise Institute sued the EPA in 2002 to prevent dissemination of a Climate Action Report on the basis of not meeting the requirements of the Data Quality Act. A lobby group for salt producers actually sued the Department of Health and Human Services for claiming that too much salt is harmful to health, even though that claim was backed up by the National Institutes of Health, which said that the food industry was adding too much salt to foods. The Data Quality Act forces agencies to ignore the precautionary principle in order to meet the Act’s “information quality” requirements. The precautionary principle basically says that if the effects of your proposed action are unknown, then you probably shouldn’t do it. Which is exactly where we are with the Navy’s exponentially increased assaults on the environment, our local economies, and public health. We don’t know what the impacts will be, and frankly, neither do they. If you’ve read their documents, as we have, proof of “no significant impacts,” especially cumulative ones, is entirely missing, as is any definition of the word “significant.”
Unfortunately, the Data Quality Act is interpreted to mean this: if you can’t prove adverse effects beyond a doubt, you should go ahead with your action because the science is not proven, and therefore is invalid for purposes of the agency’s decision-making process. Got that? So where does the Navy come in?
The last thing the Navy wants is to be caught contributing to the extinction of an endangered species or the reduction of a fishery, so anything that might make it easier to get around federal law is evidently welcome. We’ve discussed in previous posts how the Navy separates impact analyses into multiple pieces in their Environmental Impact Statements and Assessments, in order to water down the public’s knowledge of the full picture of effects. Now we’ll show how the Navy benefits from this speed bump on the road to using proper science.
Right after the Data Quality Act was passed, 12 endangered species were immediately downlisted or delisted. Recently an oil company successfully sued to get another species off the list so it could develop an area. Without the slight margin of error we get from the precautionary principle, which is bedrock to the conservation of ecosystems, we walk the razor’s edge of extinction without a safety net.
So, with the Navy so resistant to give up data that would help scientists to understand the harm being done, even going so far as to classify information that was once freely available, it’s more difficult than ever. The National Parks Conservation Association saw their Freedom of Information Act request about Navy activity in the Olympic National Forest granted, but the Forest Service deliberately delayed sending them the data for six months, until after just the comment period closed and the information could no longer be used in their comments. NPCA sued, but it’s doubtful they’ll be able to affect the final record of decision. Why would the Forest Service violate the law on behalf of the Navy? Is this fair to the public? Let’s answer that by addressing another question.
Is the Navy using best available science? We can assume that the Navy is well aware of the unevenness around the use of best available science. After reading dozens of Navy EISs, EAs, letters and internal materials provided by a whistleblower, our answer to this question would have to be: they use best available science when it’s to their advantage; when it’s not, they don’t. But we are not the first to say that. The Natural Resources Defense Council (NRDC) is one of many observant organizations that have written letter after letter to the Navy over the years, saying similar things. Here are some quotes from a variety of letters by NRDC to the Navy, starting in 2009. It almost doesn’t matter what the subject was, the complaints made then are the same complaints we have now.
“…dismisses or improperly minimizes any significant risk to fish and wildlife in this area.”
“…assessment of impacts is consistently undermined by failure to meet these fundamental responsibilities of scientific integrity, methodology, investigation and disclosure.”
“…analysis substantially understates the potential effects of sonar on marine wildlife.”
“…concludes that only one harbor seal would suffer serious injury or die during the many hours of proposed sonar training. The Navy reaches this conclusion by excluding relevant information adverse to its interests, using approaches and methods that are unacceptable to the scientific community and ignoring entire categories of impacts.”
“…analysis entirely fails to account for cumulative impacts for the years of anticipated activity.”
It’s worth noting that the NRDC has won nearly every lawsuit it has filed against the Navy. But it’s like trying to play a giant whack-a-mole game with someone who has all the advantage. The Navy keeps violating legal requirements so often that some attorneys have described the Navy’s position as default noncompliance with environmental and public health laws.
Many of us have been saying these things for years, and we’re still saying them on almost every proposed action the Navy makes. Tribes, environmental groups, concerned citizens, local governments and even Members of Congress have been pointing out these deficiencies. County Boards of Supervisors in Mendocino, Marin and Humboldt counties in Northern California and in Lincoln County, Oregon, plus the City Council in Port Townsend, Washington, and multiple other local government bodies throughout all three states have sent official letters strongly objecting to the harm caused by various “…inadequacies, contradictions, lack of reliable data, insufficient mitigations, lack of transparency, and lack of commitment to public engagement.” A 2009 letter from seven Senators in the Pacific Northwest complained about the astounding number of marine mammal takes – 11.7 million over five years, and questioned the Navy’s justification. Eleven city councils in Alaska have passed resolutions objecting to the Navy’s timing of its war games in that state. The Navy’s Northwest Testing and Training Range manager told this writer privately at a meeting where 150 people were lined up to give testimony that was never officially accepted for the record, “We’re here to listen to what they have to say, but we’re not going to do anything about it because we don’t have to.” Yes, he actually said that.
So, to demonstrate our claim that the Navy only selectively uses best available science, here are just five out of dozens of recent examples, all of which come from Navy-produced documents:
Example #1. Twenty thousand tons of heavy metals that are toxic to the environment will be dropped, exploded or discarded into our local Puget Sound and Washington and Oregon coastal waters over the next twenty years. This will be the equivalent size and weight of one Yorktown-class aircraft carrier, but totally made of contaminants. Without citing any scientific proof, the Navy’s 2015 Environmental Impact Statement (EIS) claims the contaminants will be “neutralized” by chemical reaction with seawater, or “rendered benign” by organisms that will consume them. It does not discuss cumulative effects from previous decades of toxic deposition, or the prior use of more than 30 tons of depleted uranium in cannon shells, much of it in waters where 4 Northwest Tribes have Treaty rights. Another EIS for “Phase Two” with more increases is coming out in 2018.
Example #2. In 2014 the Navy wrote an EA for proposed actions on Forest Service roads. They said amphibians are not found in disturbed areas, therefore there would be no harm done to amphibians. Any third-grader knows that a), this is a rainforest, and b), you find amphibians in rainforests, whether disturbed or not. Many of us pointed this out in comment letters, but the Forest Service did not even attempt to correct it before endorsing the EA and issuing the permit.
Example #3. The Navy uses a 28 year-old scientific literature review in its EISs and EAs in the Pacific Northwest, to inject doubt into claims that noise adversely affects wildlife. This is despite the existence of far more recent and voluminous scientific evidence, including a brand-new literature review that was available before publication of a recent EIS that relied on the 28 year-old studies. It didn’t even acknowledge the existence of any more recent research. And by the way, most of the studies in that old literature review did indeed conclude jet noise harms domestic animals, wildlife and humans. The Navy lifted a single sentence out of context from one of its papers. From whistleblower materials, we discovered that they also refused to provide the Fish and Wildlife Service with the information it needed to accurately predict impacts and insisted via a series of leaked emails that they use of a 41 year-old study on domestic poultry, while at the same time requiring those predictions to be valid for the next 20 years. In an ironic twist, the Navy scolded the Superintendent of the Olympic Coast National Marine Sanctuary in a November 2015 letter that said she should be more careful about establishing “hot spot” locations for several species, because the research she and her staff used was funded by… the Navy.
Example #4. The Navy’s aircraft noise modeling software is outdated. It does not analyze the low-frequency noise that’s a signature of the Growler jets that replaced the old Prowlers in 2005. A Department of Defense commissioned study found that the software they’re using is not appropriate for Growler engines. The modeling uses a software called NOISEMAP, that was developed in the 1970s and whose most recent upgrade was 12 years ago. It uses a library of aircraft sounds from the Air Force, with no actual measurements from affected areas. I’ve also read accounts that say the Air Force’s sound library is out of date. The modeling they do is for the flat island terrain near the base, and not coastal mountains, which bounce sound waves differently and have completely different weather. In looking at NOISEMAP’s inadequacies, the DOD’s Strategic Environmental Research and Development Program, or SERDP, determined that new software is needed “…to provide legally defensible noise assessments of current and future aircraft operations.” It found that NOISEMAP’s linear acoustics were inadequate for modeling the acoustic environments in the vicinity of higher thrust engines used in the Growler.
New software was developed in 2010 to address this, but conversations we’ve had with Navy officials indicate they are satisfied with the old software and don’t intend to upgrade it. The Navy also ignored Congressman Derek Kilmer’s request for a “neutral” sound study by FICAN (Federal Interagency Committee on Aviation Noise). It’s worth noting that researchers have found evidence of a higher incidence of vibroacoustic disease (thickening of heart tissue caused by low frequency noise) in residents living near air bases, than in residents elsewhere. Yet the effects from low-frequency noise have been neither measured nor analyzed, and if they have, were not made public. As a result, use of outdated studies and faulty software allows the Navy to conclude that “…it cannot be conclusively stated that a causal link exists between aircraft noise exposure and the various types of non-auditory health effects that were studied.” As an aside, a former Navy officer said, in an interview at radio station KXIR 89.9, on June 19, 2015, that he considered local residents who are being harmed by naval activities to be “collateral damage” in the war on terror. Yes, he actually said that.
Example #5. A Professor Emeritus at Washington State University who is a recognized expert on electromagnetic frequency, or EMF, effects on living tissue said, “the U.S. Navy provided in this Final EIS not a single citation to justify its claim that we don’t need to worry about such health effects. Since 1971, there have been well over 8,000 additional studies on non-thermal health effects. The Navy provides not even a single citation to the scientific literature to support its claims. In this entire EIS, the Navy has produced not a single study of biological impacts of the EMFs it plans to unleash on the people, animals and plants of the Olympic peninsula. Their entire argument for safety is based on a theory that only thermal effects need be considered, a theory that the Navy itself knew to be false 44 years ago and is widely known in the scientific community to be false. This alone should be more than sufficient to throw out this entire EIS.” Watch the video here.
Unfortunately, a growing body of case law shows too many agencies failing to use best available science, while the courts defer to agency judgment, even in some egregious cases of failure.
The National Environmental Policy Act of 1969, abbreviated NEPA, imposes a lesser standard: rather than insisting on the best scientific information available, its regulations require information of “high quality” and professional integrity. There’s wiggle room in how that could be interpreted. Regardless of how best available science is defined, the phrase describes a plainly-worded concept that is irrevocably woven into public trust responsibility: Best. Available. Science. Not second rate, not outdated. Best. If it’s been peer-reviewed and published, it’s available.
At the beginning of this article we featured a shocking photo of a nuclear submarine with its bow bashed in. This was the result of colliding at flank speed (about 43 mph) with an underwater mountain. This link leads to the Navy’s final report, which faulted bad procedure. Good procedure is based on the same precautions that underlie good science: unless you are certain of the effects, proceeding with your proposed action would be risky, even rash. By alienating and harming its neighbors, that’s the gamble the Navy is taking with public health, our economies and our environment.
So what can you do? In every comment letter you write to the Navy, you should be insisting that they use the best available science. You should be demanding that they demonstrate professional integrity with the data they use to back up claims, and when they don’t, you should call them out on it, publicly. You might also steer them toward that best available science, so that continued reliance on outdated or incomplete evidence is unsupportable.
Merely questioning the Navy’s failure to use best available science or the fairness of its public processes, or asking for data that should be available, does not mean we are questioning Navy’s legitimate need for training its sailors and pilots. Yet the questioner is too often labeled unpatriotic. In answer to the reasonable question from those 11 Alaskan communities, “would you please move your training to a non-peak migration time that does less damage to fisheries and marine mammals?’ the Navy moved it to coincide more precisely with peak whale and salmon migration. The public took it as a stick in the eye. Asking the Navy for a fairer public process has resulted in online nastiness from pilots and threats of bodily harm from Navy supporters, which is why we have disabled comments and do not sign the posts on this web site. Some people don’t like it when you question the military, even if your questions have merit. But wrong is wrong, no matter who does or says it.
We need a well-trained military, but right now the Navy decides what it’s going to do long before opening the public process, and then they don’t listen to suggestions on how to minimize their impacts, unless they are taken to court. That’s got to stop. So, create a loud chorus of demands that the Navy use the best available science, and with your letters, articles, public comments and other communications, call them out on it when they don’t. Let your elected representatives hear your displeasure. We may not have enough money to sue them every time they break the law, but collectively we can try them in the Court of Public Opinion. Because they cannot ignore forever the legitimate economic, environmental and public health concerns of the people who pay for their salaries and equipment.