Environmental law left stranded? The regulation of military sonar under the EPBC act and lessons from the United States

The use of active sonar by navies has attracted increasing concern in recent years regarding its potentially harmful impact on marine mammals. This article presents a comparative analysis of the regulation of military sonar activities under United States and Australian environmental law. It critiques the United States litigation culminating in the Supreme Court decision Winter v Natural Resources Defense Council Inc. This litigation was characterised by executive and judicial deference to national security interests and the ultimate undermining of United States federal environmental law. The article contrasts this experience with the less litigated Australian setting, analysing sonar activities governed by the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Despite the Royal Australian Navy's excellent environmental credentials, the application of this Act to sonar activities is problematic insofar as these assessments are informal and limit public participation. This situation indicates the need for an improved accreditation framework such as that recommended in the recent independent review of the Act.