Navy Sonar v. Whales Argued in U.S. Supreme Court

By J.R. Pegg
|  Thursday, Jan 7, 2010  |  Updated 3:18 PM PDT
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Navy Sonar v. Whales Argued in U.S. Supreme Court

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The U.S. Supreme Court will hear a case involving the dispute that emerged from the Navy's plan to conduct a series of 14 submarine hunting exercises using its mid-frequency active sonar off the coast of California.

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WASHINGTON, DC, October 8, 2008 (ENS) - The U.S. Supreme Court today waded into a dispute between the U.S. military and environmentalists and appeared closely divided over whether a federal judge had the authority to force the Navy to restrict sonar training exercises off the coast of California in order to minimize harm to whales and dolphins.

The closely watched case touches on controversial issues of presidential power and the military's obligation to follow key environmental laws that require federal agencies to consider and mitigate the environmental impacts of their activities.

The dispute emerged from the Navy's plan to conduct a series of 14 submarine hunting exercises using its mid-frequency active sonar off the coast of California, beginning in January 2007.

The sonar has been found to injure whales and dolphins, interfering with their ability to communicate and navigate and potentially causing fatal strandings.

The Natural Resources Defense Council and five other environmental groups filed suit in March 2007, alleging the Navy had failed to properly assess the potential impact to marine mammals in violation of federal environmental laws.

In a California courtroom, U.S. District Judge Florence-Marie Cooper agreed with many of the groups' claims. She issued a preliminary injunction, ordering the Navy to restrict the power and location of its sonar testing to protect marine mammals.

The Bush administration then moved to exempt the Navy from the relevant environmental laws by declaring the sonar training exercises essential to national security.

But the Ninth Circuit Court of Appeals upheld the district court ruling, prompting the Bush administration's appeal to the Supreme Court.

U.S. Solicitor General Gregory Garre urged the court to vacate the lower court ruling, calling the sonar testing "critical to the nation's own security."

But Garre faced a barrage of questions from the court's four liberal justices and Chief Justice John Roberts about the Navy's decision not to prepare an environmental impact statement, EIS, before it began the training exercises.

Garre explained that the Navy's environmental assessment of the training exercises indicated little harm to whales and dolphins and so precluded the completion of an EIS.

The Navy has been using mid-frequency active sonar off the coast of California "for more than 40 years and no one can point to any harm to marine mammals," Garre said.

That failed to appease Justice John Paul Stevens, who said it made sense for courts to block or restrict the training exercises in the absence of an EIS, a document that outlines alternatives and strategies to mitigate environmental impacts.

"The very fact you need an EIS is because you don't know what environmental consequences may ensue," said Justice Stevens. "That's the purpose."

But Garre faced more questions on why the Navy now is completing an EIS for the training exercises as part of the "alternative arrangement" for compliance with the National Environmental Policy Act laid out by the White House Council on Environmental Quality, when the Bush administration declared the exercises essential to national security.

Both liberal and conservative justices found this course of events confusing.

"I am not getting it," said Justice David Souter, who questioned the White House move to intervene in the matter.

"If there is an emergency, it's one that the Navy created simply by failing to start an EIS preparation in a timely way," he said.

Chief Justice Roberts noted that the Council on Environmental Quality is "an odd entity" to be dictating how the Navy should comply with the National Environmental Policy Act.

Justice Ruth Bader Ginsburg also questioned the merits of completing an EIS in January 2009 given that the training exercises will be finished by December 2008. "What good is it?" she asked.

Garre responded that the EIS would pertain to future training exercises.

Justice Antonin Scalia came to Garre's defense, saying he'd been "whipsawed" and in effect prevented from arguing an EIS is unnecessary because the Navy agreed to complete one under the arrangement orchestrated by the Council on Environmental Quality.

Garre should not be prevented from arguing that the Navy believed the environmental assessment was a "good faith completion" of its responsibilities, Scalia explained.

"We agree with that," said Garre, who added that the Navy "has never conceded that it was required to do an EIS at the outset."

Scalia, Roberts and the other members of the court's conservative majority appeared sympathetic to Garre's view that the Navy's sonar testing should not be subjected to the limits imposed by the district court judge.

Justice Samuel Alito called Judge Cooper's decision to restrict the sonar testing "incredibly odd."

Robert Kendall, the attorney representing the Natural Resources Defense Council, replied that Judge Cooper was "extraordinarily deferential" to the Navy and only imposed restrictions that were based in fact. The Navy has completed eight of the 14 training missions since the restrictions were put in place, he added.

"The reason there is no emergency is because the Navy is perfectly able to train under these circumstances," he said.

The Navy had agreed to some of the restrictions in a similar case in Hawaii, Kendall added, but Cooper had reason to extend these limits.

"The problem that the judge had is that the Navy cannot be the judge of its own cause," he said. "Deference does have its limits."

Kendall said the Navy has downplayed the impact of mid-frequency active sonar on marine mammals even though it found concerns when it completed its environmental assessment.

That assessment predicted the sonar training exercises would disturb or injure an estimated 170,000 marine mammals, including permanent injury to more than 500 rare beaked whales.

"The evidence is overwhelming that beaked whales are being stranded by sonar and killed," Kendall said. "Autopsies show they are hemorrhaging and dying."

But Justice Stephen Breyer voiced concern that the Navy's training needs may have been compromised.

"The Navy is saying, ‘If we can't train personnel using these levels of sonar, we can't train people to find submarines where they hide,' Breyer said. "This makes me very nervous."

Breyer, one of the court's liberal justices, expressed his frustration with the dispute, questioning why environmentalists and the Navy had failed to reach a compromise.

"They are willing to give you quite a lot of conditions, and you say, well, we have got to have more conditions," Breyer told Kendall. "And you are asking us who know nothing about whales and less about the military to start reading all these documents to try to figure out who's right in the case where the other side says the other side is totally unreasonable."

"And the issue at law seems to be something that is going to last for two months," said Breyer, asking, "what is the important thing here?"

The important thing, Kendall replied, "is that the Navy is focused on having it its way or no way."

But the Chief Justice Roberts called that remark "very unfair."

"There were six conditions imposed by the district court. The Navy didn't even appeal four of them - they gave up on four out of the six issues," Roberts said. "That's not insisting on having it their way."

The Supreme Court is expected to issue a ruling in the case early next year.

--By J.R. Pegg, ENS Washington Bureau Chief

{Photo: Secretary of the Navy Donald Winter, right, and Chief of Naval Operations Admiral Gary Roughead leave the U.S. Supreme court today. (Photo courtesy U.S. Navy)}

Copyright Environment News Service (ENS) 2008. All rights reserved.

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