LU’s Renee Nal wrote on Friday about President Obama’s proposed expansion of a “marine protected area” in the Western Pacific (WESTPAC) – an area that would become the largest such marine preserve in existence. Obama plans to use the Antiquities Act of 1906 as his authority for expanding the area. It would build on a substantially smaller group of areas designated by George W. Bush in January 2009 (also under the Antiquities Act) as the Pacific Remote Islands National Marine Monument.
Bush’s monument designation is depicted on Map 1 as the series of circular areas around the Pacific island territories of the United States southwest of Hawaii. (It’s because these are U.S. territories that an American president can designate national marine monuments around them.) The total area of the group of monuments is about 87,000 square miles.
The boundary of the Obama expansion is as indicated on the map, encompassing all of the non-contiguous areas previously designated by Bush, and forming one large, contiguous marine protected area of approximately 782,000 square miles.
Broad scope for exceeding authority
There are several reasons for concern about this move. One, discussed at some length in this 2010 article by Mark Laemmle in the Villanova Environmental Law Journal, is the unsuitability of the authority in the Antiquities Act for environmental conservation. (“Monumentally Inadequate: Conservation at any Cost under the Antiquities Act,” Vol. 21, Issue 1)
More than one commentator has voiced this concern over the years. Colin F. Lynch, a Sea Grant Fellow at Roger Williams University School of Law, published an article of his own in 2011, arguing for an approach he considered consonant with the Obama administration’s policy: that is, reinvigorating the National Marine Sanctuaries Act of 1972 as the principal means of designating new marine areas for conservation. (“The Use of the National Marine Sanctuaries Act as a Tool for the Enhanced Preservation of Marine Resources under the News National Oceans Policy,” (2011), Sea Grant Fellows Publications, Paper 23)
But this brief passage from Lynch’s executive summary (p. 2) clarifies crisply why presidents use the Antiquities Act rather than the National Marine Sanctuaries Act:
The Antiquities Act, now over one hundred years old, has recently been re-tasked to preserve marine resources. The Antiquities Act grants the President broad powers to preserve public areas with scientific, historic, or other cultural value. Under this law, the President is able to preserve public areas quickly and almost unilaterally. This process does not require a great deal of public input.
The National Marine Sanctuaries Act (“NMSA”) was passed in the early 1970s and designed to provide a comprehensive approach to ocean preservation. The designation process involves a great deal of public and governmental input to ensure that the sanctuary meets the needs of those who live and work on its waters.
Laemmle and Lynch both make the point, common in policy discussions on this topic, that there’s a lot of free-wheeling in the gray areas between different agencies’ authorities over marine conservation. Translated, this means that we can expect the Obama administration to outrun the proper boundaries of its authority – the boundaries envisioned by Congress – in managing the expanded marine national monument in WESTPAC. Behavior like that of the Obama EPA and the Obama BLM, among other tyrannical agencies, is to be expected from the Department of the Interior, the U.S. Fish and Wildlife Service, and the National Marine Fisheries Service, which will have the lead roles in setting policy for the expanded monument.
Renee focuses (quite correctly, in my view) on the impact this monument designation will have on the use of marine resources: fisheries, mining, and oil and gas. There’s never been a time in history when it was a good idea to declare huge tracts of food and energy supplies off limits.
But there’s another reason for concern about Obama’s expanded monument area, and that’s the one I want to focus on here. Because of its size and geographic location, the Pacific Remote Islands National Marine Monument, as expanded by the Obama proposal, has the potential to create a very serious national security vulnerability.
National security: Sonar wars
The gray areas in agency authorities, and the Obama administration’s tendency to zealously overstep its boundaries, figure into the problem. Obama’s agencies are all too likely to implement by executive fiat the preferred policies of extremist advocacy groups. Such actions have bypassed and confounded Congress on a number of occasions since 2009, and we can count on that happening again with the Pacific Islands monument.
The environmental extremist priority that will most likely affect national security in WESTPAC is the hatred of advocacy groups for the Navy’s active sonars. Many readers will be aware that environmentalist groups have been fighting the U.S. Navy for years over the use of low-frequency and mid-range sonars. A 5-4 Supreme Court decision in 2008 seemed to settle the issue in the Navy’s favor, although the Navy has to renew annually its permission from the National Marine Fisheries Service (NMFS) to operate the sonars in question for training and research, which typically takes place near the coasts, and for broad-ocean surveillance (the latter being the role filled by low-frequency active, or LFA, sonar).
But additional suits have been brought since the 2008 case. And a federal judge gave environmentalist plaintiffs a victory in September 2013, rejecting a Navy agreement with the NMFS – an agreement on training and research in specified areas of the Pacific – as being based on outdated scientific analysis. The judge ordered NMFS to complete the justification for a new agreement by 1 August 2014.
Whether invoking “new” scientific perspectives or different points of law, environmentalists may ultimately succeed in getting the 2008 ruling effectively overturned. Meanwhile, there are three important dimensions to the expansion of the Pacific Islands marine monument which would make it far tougher to “manage” as a national security issue.
Dimensions of the problem in the marine monument area
The first is that the expanded monument area takes the sonar fight, which has been mostly contained in smaller areas near the coast, and writes it over a huge swath of ocean. Under any conditions, avoiding the use of naval sonars in such a large area would be operationally prohibitive.
But the conditions in the Pacific Islands monument area aren’t just any conditions. The second dimension of the problem is that virtually all uses of active sonar in this area will be for real-world operations. That means they are not dispensable. The Navy can’t just decide not to do them.
The Navy can suspend or postpone training in restricted areas, if it has to, although that isn’t optimal for national security. It can negotiate intermissions and timetables with other parties, if the activity being limited is training or research. But it can’t dispense with sonar on someone else’s schedule, in a gigantic area of the ocean, and expect to operate there as a fleet and meet national security requirements.
The expanded Pacific Islands monument is entirely a forward operational area. It’s not a training area from which the Navy might perhaps relocate to satisfy other stakeholders. It’s a very large part of the ocean which we would be deciding to close off to certain kinds of operations – if we followed the monument expansion to its predictable conclusion, and allowed the logic of environmental activism to override the needs of the Navy.
This brings us to the third dimension of the problem, which is that the expanded Pacific Islands monument is an especially bad place to limit or curtail our naval operations. The reason is that it is the most obvious pathway for Chinese naval units, including submarines, into the Central and Eastern Pacific.
China’s naval gateway to the Pacific
We know this based on more than geography. For the last decade, China has been increasing her long-range naval activity, and her most navy’s most favored route into WESTPAC has been from the East China Sea through the Miyako and Osumi Straits in Japan’s southerly Ryukyu Islands. (See the small magenta arrows on Map 2. Maps 2, 4, and 5 give serial views of the expanded monument area overlaid on a map of WESTPAC that shows the bottom topography – which I’ll explain shortly.)
The small circle east of the Philippines is where a Chinese naval task force stopped in February 2014, during a uniquely broad-ranging and varied deployment, to conduct live-fire training. Such training was a first for the Chinese navy in an area that far east of the Japanese archipelago.
The gradual expansion of China’s naval operating areas, including expansion into the Pacific, has been a key trend in the Chinese fleet’s profile. Coupled with it in recent years have been deployments by intelligence collection ships (AGIs) to patrols off of Guam and Hawaii. These patrols are intended straightforwardly for collection against U.S. military activities, of course, but in light of China’s expanding naval profile, they are also a harbinger of future fleet operations in the Pacific.
Of particular significance, especially as it concerns the use of sonar, is the likelihood of Chinese submarine operations becoming routine in the Pacific. Alert readers will remember that a Chinese submarine has already surprised a U.S. carrier battle group on the Pacific side of the Japanese islands – although that incident occurred close to Okinawa, so it wasn’t very far into the Pacific. But China has the requisite order of battle today to deploy diesel-powered Kilo-class attack submarines (SS) for a few patrols per year further into the Pacific (e.g., near Hawaii), and is reportedly preparing to start putting nuclear-powered ballistic missile submarines (SSBN) on patrol as well.
Map 3 is a depiction of notional launch positions and ranges for Chinese SSBNs carrying the JL-2 sub-launched ballistic missile, depending on whether the strategic target is in Hawaii or southern California. And one thing we notice right off the bat is that an SSBN on patrol to target such objectives would move right into the expanded Pacific Islands monument area – early and probably often.
Which brings us to Map 4. Map 4 has the monument overlay, and, superimposed on top of it, the likely transit corridors (in pale magenta) for Chinese submarines heading for the Central or Eastern Pacific. The corridors break to either side of the Hawaiian Islands.
This is where the bottom topography comes into play, which is why Map 5 is also included: a zoomed-in view of the monument area and its topographic features. The Chinese submarines’ likely transit corridors aren’t just a wild guess. They’re depicted where they are because they cross, and make use of, the type of mountainous sea-bottom terrain that submarines love to navigate off of – and hide in.
If you look at the combined views that make up Map 6, you’ll see that the Pacific Islands monument area not only lies across the most direct paths from the East China Sea to the Central Pacific, but is one of the most seamount-infested parts of the entire Pacific Ocean floor – especially compared to the floor of the Eastern Pacific. Seamounts are good reference points for underwater navigation, but they’re also excellent baffles for longer-range sonar acoustics. So, in fact, are the prevailing currents in the monument area, which are warm – bad for sonar propagation – and countervailing, as they are in the vicinity of the equator (see Map 7). The warmth and persistent counter-currents of the equatorial region inhibit seasonal development of long-range “sound channels,” the naturally-forming propagation pipes through the ocean that can be a submarine’s worst enemy.
If Chinese submarines have tactical or strategic objectives east of Hawaii, they’ll have a bias toward lingering among the seamounts in or near the Pacific Islands monument area for much of their patrol time, rather than spending more time than necessary in the more acoustically vulnerable Eastern Pacific, where the bottom tends to be much smoother overall. We’ll find it harder to detect and track the Chinese subs in the monument area, even though we have a good general idea that that’s where they are.
The same limitation will apply to other navies, and their submarines and sub-detectors. China will prefer operating her subs in the area of the monument, southwest of Hawaii, rather than driving them up north where the Japanese and Russians would be on the prowl, and would have a better chance – with a smoother sea-bottom and colder water – of detecting a foreign submarine.
Yet keeping submarines like SSBNs on the west side of the Japanese islands, in the East China Sea, is also an inferior proposition. Maritime traffic is much thicker there, bottom depths are shallower, underwater topography is less friendly, and the SSBN would be further from North America or Hawaii. A key advantage of a patrol hideout in the Pacific Islands monument area is the ease with which a Chinese SSBN could hold both the United States and Japan at risk with JL-2 missiles.
It’s highly probable that in the coming years, the U.S. Navy will need to use sonar in the expanded monument area, whenever and however it has to, to find and track China’s submarine fleet. It won’t matter whether we want to operate there. China’s going to put submarines there. Using sonar there, at the Navy’s sole discretion, will be an irreducible necessity for national defense.
Any marine protection area as large as the one Obama proposes was likely to get crossways of an important national priority of some kind. The Pacific Remote Islands National Marine Monument, Obama-expanded edition, has gotten precisely crossways of Obama’s signature national security initiative: shifting our strategic priorities to Asia and the Far East. We can hope that the Navy is simply excused, in the expanded monument area, from the coordination requirements it has been subject to for sonar use in the Eastern Pacific. Such requirements cannot be imposed on real-world operations.