Metropolitan News-Enterprise


Thursday, October 9, 2008


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U.S. Justices Appear Divided in Dispute Over Sonar Use by Navy


From Staff and Wire Service Reports


The U.S. Supreme Court appeared divided yesterday over how to resolve a long-running dispute over whether environmental laws may be used to limit the Navy’s use of sonar to protect whales.

The court heard arguments in the Bush administration’s appeal of court rulings that restrict sonar in submarine-hunting naval training exercises off the Southern California coast. Sonar can interfere with whales’ ability to navigate and communicate.

“The ability to locate and track an enemy submarine through the use of mid-frequency active sonar is vitally important to the survival of our naval strike groups deployed around the world and therefore critical to the nation’s own security,” Solicitor General Gregory Garre told the justices.

Garre said there is scant evidence over 40 years of exercises off the Pacific Coast that the Navy’s sonar harms whales and dolphins.

But Richard Kendall of Irell and Manella, representing the Natural Resources Defense Council, said the sonar’s piercing sound was comparable to the noise of a jet engine magnified 2,000 times in the courtroom.

Beaked Whales

A species of whales called beaked whales are particularly susceptible to harm from sonar, which can cause them to strand themselves onshore, Kendall said.

The case left one justice, Stephen Breyer, wondering how a judge should balance national security concerns and environmental interests.

“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,” Breyer said.

The exercises have continued since the Ninth U.S. Circuit Court of Appeals ruled in February that the Navy must limit sonar use when ships get close to marine mammals.

Kendall told the justices that the Navy is managing under the restrictions, saying eight of 14 planned exercises have been completed since the restrictions took effect.

This round of training is scheduled to be completed by January.

Separately, the Navy has agreed to similar limits on anti-submarine training off the coast of Hawaii to settle another NRDC lawsuit.

But Garre said the issue for the court is whether federal judges should have stepped in to force changes to the training when the government’s first environmental assessment found there was little prospect of harm.

Environmental Assessment

The Navy’s own environmental assessment of using sonar during the 14 training exercises off the California coast found that it could disturb or harm an estimated 170,000 marine mammals, including possible temporary hearing loss in at least 8,000 whales.   But Garre told the justices that “[n]one of the beachings [of beaked whales] in Southern California has been tied to sonar operations.”

The administration also says the president has the power to override federal court rulings on environmental laws during emergencies that include harm to national security. The Navy says it already has taken steps to protect beaked whales, dolphins and other creatures and is balancing war training and environmental protections.

Justice David Souter ridiculed the idea that the administration could declare an emergency to try to get around complying with environmental laws. The Navy opted not to conduct a more rigorous environmental study, an environmental impact study, before beginning the long-planned exercises, Souter said.

“If there’s an emergency, it’s one the Navy created simply by failing to start EIS preparation in a timely way,” he said.

Justices John Paul Stevens and Ruth Bader Ginsburg also suggested that the Navy could have avoided the court fight by producing the impact study before the exercises began.

Justice Samuel Alito suggested that he found little evidence in the court record that the marine mammals would be harmed by the sonar use.

‘Incredibly Odd’

Alito also said there was “something incredibly odd” that a single federal judge, who issued the first order against the Navy in this case, would be able to force changes in the exercises. “contrary to the determination that the Navy has made.”

Kendall responded that U.S. District Judge Florence-Marie Cooper of the Central District of California had been “extraordinarily deferential to the Navy” and “rejected most of the measures that plaintiffs sought” to protect marine mammals, but that some of the Navy’s assertions, such as a claim the exercises had to take place at night, were just not factually supportable.

Like Alito, Chief Justice John Roberts and Justice Antonin Scalia appeared supportive of the government’s case.

The injunction issued by Cooper early this year created a 12-nautical-mile no-sonar zone along the coast and ordered the Navy to shut off all sonar use within 2,200 yards of a marine mammal. Cooper issued the injunction under the National Environmental Policy Act, which requires federal agencies, both military and civilian, to consider the potential environmental impacts of their actions.

The Ninth Circuit sided with the lower court and said the Navy must abide by the injunction. However, while the litigation was under way, the appeals court gave the Navy permission to use sonar closer than the restrictions allow during critical maneuvers.

The case is Winter v. Natural Resources Defense Council, 07-1239.


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